Wednesday, September 30, 2015
Call for Papers for Association for Law, Property & Society 7th Annual Meeting
Queen’s University Belfast, Belfast, Northern Ireland, United Kingdom May 20–21, 2016
The Association for Law, Property & Society (ALPS) is a scholarly organization for those engaged in scholarship on all aspects of property law and society. Its annual meeting brings together scholars from different disciplines to discuss their work and to foster dialogue among those working in property law, policy, and theory. Prior meetings have averaged approximately 150 participants from across the globe. ALPS will hold its 7th meeting at Queen’s University Belfast in Belfast, Northern Ireland, United Kingdom on May 20-21, 2016. An optional field-trip and opening reception are planned for the afternoon of May 19.
Registration and Submission Instructions
Submissions on any subject related to property law are welcome. ALPS has a strong commitment to international and interdisciplinary diversity, and paper topics reflecting that commitment are encouraged.
ALPS accepts both individual paper submissions and proposals for fully formed panels (usually 3 to 5 presenters). Submissions may be for full paper drafts or early works-in-progress. Submissions should include an abstract of no more than 250 words that indicates the name of the submitting scholar, the scholar’s institution, and an email contact for the scholar. If submitting a fully formed panel, please insure that an abstract for each paper is included in the submission and that each abstract clearly identifies the fully formed panel the paper is a part of.
Registration and paper/panel submission information is available at
The deadline for submitting papers and panels is February 1, 2016, but registration for the conference will continue to be available after that date.
A discounted early registration rate of £110 (GBP) is available until February 1, 2016. After that date, the registration rate is £150 (GBP). The registration rate for full-time students (JD, PhD, or other program) is £30 (GBP).
ALPS will notify authors and panel proposers of acceptance of their individual submissions or proposed panel on a rolling basis, generally within three weeks after the date of submission.
After the submission deadline of February 1, 2016, ALPS will thematically group accepted papers and panels. Concurrent panels will be held on both days of the conference with each panel session lasting approximately 90 minutes and including both individual presentations and time for questions from the audience.
Please direct all inquiries to [email protected].
Ann Eisenberg (West Virginia) has posted Land Shark at the Door? Why and How States Should Regulate Landmen (Fordham Environmental Law Journal) on SSRN. Here's the abstract:
This Article examines principles of fairness in bargaining as they apply to the “landman” profession — a largely ignored issue which rests at the intersection of the pressing matters of income inequality and energy development. Landmen have been the middlemen between energy companies and landowners for over a century; they negotiate high-stakes financial transactions and have gained notoriety for unethical conduct, yet they are generally unregulated. In this Article, I argue that this laissez-faire regime is inconsistent with the thrust of modern U.S. law. Specifically, I look to professions with responsibilities comparable to landmen’s, including realtors, lenders, and brokers, and argue that consistent themes emerge across realtor-buyer, lender-borrower, broker-buyer, and landman-landowner relationships — call them, respectively, Party A (realtor, lender, broker, landman) and Party B (buyer, borrower, buyer, landowner). All have issues with Party B’s potential for confusion as to whether Party A is serving her interests; potential conflicts of interest on the part of Party A, such as financial incentives to steer Party B toward something risky; information asymmetries that favor Party A, and Party A’s potential to manipulate Party B through omissions or misrepresentations; and Party B being unrepresented in a complex and potentially hazardous transaction with serious personal ramifications. Yet, regulations applicable to the other professions are stricter than any standards applicable to landmen. Although the law has traditionally not intervened into bargaining processes, intervention has tended to be stronger where one party is perceived as patently weaker. The appropriateness of regulating landmen thus rests not only in the moral imperative to prevent exploitation — such as the mass land dispossession that landmen are known to have facilitated — and in the imperative to manage energy development responsibly, but also in the law’s stronger willingness to intervene into comparable bargaining scenarios. This Article also reviews the few existing regulations governing landmen and attempted reforms, and proposes elements that could be included in state-level legislative regimes governing landmen.
Jane Baron (Temple) has posted Irresolute Testators, Clear and Convincing Wills Law (Washington and Lee Law Review). Here's the abstract:
Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called “harmless errors” in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator’s death. To respond to this concern, both the error and the testator’s true intent must be established by “clear and convincing” evidence.
This article is the first to examine how courts have applied the clear and convincing evidence standard to these important reforms of wills law. In practice, the clear and convincing evidence standard provides less evidentiary protection than its proponents expected. More importantly, judicial struggles with the clear and convincing evidence standard expose a deep fissure in the very concept of testamentary freedom.
The reforms assume — as does the Wills Act itself — a fully-formed, fixed set of choices that the testator has sought to express in his will, choices made by a conventionally rational choosing testamentary self for whom wills rules are a means for furthering self-determined ends. This conventionally-rational testator makes only innocent, inconsequential errors. Many of the testators in the actual cases, however, display only bounded rationality. Their errors are not simple accidental snafus. While the reforms contemplate correction only of the technical, innocuous expression or execution errors made by self-reliant, choosing testamentary selves, at least some courts care also about the more complicated errors made by vulnerable, irresolute testamentary selves. These courts push against the reforms’ boundaries. The clear and convincing evidence standard has not and will not function as a serious limit on mistake correction because it fails to reckon with both visions of testamentary freedom.
Monday, September 28, 2015
Do investments in sidewalks and other pedestrian-oriented infrastructure pay off for cities? According to two professors of landscape architecture at Texas A&M, sidewalk investments only lead to higher property values and higher property taxes if they're deployed in neighborhoods that are already walkable:
We found that the highest premiums for walkability are in the most walkable neighborhoods: a 1 percent increase in walkability yielded a $1,329 increase in property values; a 1 percent increase in sidewalk density generated a $785 increase in property values. Homes in neighborhoods that are at least somewhat walkable and very walkable also experienced premium increases, although correspondingly less. In contrast, increasing walkability and sidewalks in car-dependent neighborhoods did not have any significant impact on property values. Therefore, it is likely that an investment in sidewalks and neighborhood amenities will yield a greater home price increase in a walkable neighborhood than in a car-dependent neighborhood.
John Ragsdale (UMKC) has posted Sacred in the City: The Huron Indian Cemetery and the Preservation Laws on SSRN. Here's the abstract:
The Huron Indian Cemetery sits on a hill above the confluence of the Missouri and Kansas Rivers. It is several acres of predominant green, with grass, mature trees, and modest, weathered grave stones, surrounded by the sterile concrete of a struggling Midwestern city. Desultory businesses, colorless governmental offices, a casino, and strong evidence of poverty and vandalism lap at the shores of the small sanctuary. Yet despite the drab and essential joylessness of the encircling faded modernity, the cemetery holds a surprising sense of peace and even timelessness. The serenity may seem incongruous, not only because of the tawdry surroundings, but also because of the cemetery’s chaotic history as a center of numerous legal and economic conflicts. This article will focus on the story of endurance and on the reciprocating feelings inspired by and invested in this unique burial place. It will deal with the general, perhaps inevitable, tension between the sacred and the profane – the clash between the emotion, solemnity, and repose of a spiritual site, the transformative calculations of economic and political expediency and the law that may bridge that gap.
Nicholas Blomley (Simon Fraser) has posted The Right to Not Be Excluded: Common Property and the Struggle to Stay Put (Book Chapter) on SSRN. Here's the abstract:
A chapter in a forthcoming book on commons, this paper draws from CB Macpherson's concept of common property as the right to not be excluded in order to make sense of the enduring and heroic struggle in inner-city Vancouver against gentrification-induced displacement.
Friday, September 25, 2015
This is one of the stranger disputes I've stumbled upon:
With nearly six figures pumped into his care and training, Beau Lemon, a bichon frisé from Minnesota, rose through the dog show ranks to become the second best of his breed in the nation. . . . When he retired from the show ring in 2012 at age 3, he was expected to breed with females until he turned 10 in hopes he’d pass along his legacy.
But that was cut short, owners Mary and John Wangsness alleged in a lawsuit filed in Ramsey County, when Beau’s breeder had the then-4-year-old dog neutered in July 2013 without their knowledge.
The nasty legal dispute between Mary and John Wangsness and Beau’s breeder, Vickie Halstead, has played out in court for about a year. The Wangsnesses alleged in the suit that Halstead acted in “vengeance” by neutering Beau because they had tried to breed him twice to a female dog, Cha Cha, without obtaining Halstead’s approval, which was required in a sales contract. (Mary Wangsness had wanted a puppy from Beau.)
The suit seeks more than $50,000 in damages, but there’s more at stake — about eight vials of what’s believed to be Beau’s frozen semen, estimated to be worth $3,000 each.
The semen is allegedly being held under Halstead’s name at an Inver Grove Heights veterinary clinic. She allegedly has profited from two sales, but John Wangsness wants ownership of it. “Damn right, they’re mine,”he said.
[...] Regarding the frozen semen, Crosby said at the hearing, it belongs to Beau’s brother, Beau Jangles, and that the confusion is due to the similar names.
Björn Hoops (Groningen) has posted More Safeguards Instead of a Ban of Economic Development Takings: The Kelo Case from a German Perspective (Book Chapter) on SSRN. Here's the abstract:
The public response to the Kelo judgment of the US Supreme Court in the United States was mostly withering. It was apprehended that the uncertain promise of only slight economic benefits could henceforth justify a taking (of a home in particular) and that already disadvantaged people would be particularly prone to such takings. The call for a ban of takings for the purpose of economic development was crowned with some success. In an overwhelming number of States, either the State legislature or the State Supreme Court has banned economic development takings.
In this contribution I argue that a ban of economic development takings is not inevitable. The US Supreme Court and the State legislatures should instead seek to install judicial, procedural and substantive safeguards to avoid undesirable takings. The public good requirement, enshrined in Art. 14(3) of the German Basic Law (Grundgesetz; GG), provides a variety of instruments for that purpose. Relying upon this constitutional provision, the German Federal Constitutional Court (Bundesverfassungsgericht) has introduced five effective safeguards in German law. First, it requires Parliament to define the purposes of the taking (expropriation) in much detail. Secondly, the taking is subject to two fully reviewed proportionality tests. Thirdly, in balancing the involved interests, authorities and courts must accord additional weight to residential property that is envisaged to be taken. Fourthly, the competent authority is obliged to take measures that ensure that the private transferee actually implements the economic development project on the expropriated land. Fifthly, should the transferee fail to implement the project, the original owner must have the right to reacquire the property. The comparison with Art. 14(3) GG shows that these instruments are lacking in the jurisprudence of the US Supreme Court and Connecticut State law.
I argue that if Connecticut (or another US state) adopted these safeguards or other instruments with similar characteristics from other US states, the goals of the recent bans would be achieved while economic development takings would remain a policy option.
Alexander Lemann (Georgetown) has posted Rolling Back the Tide: Toward an Individual Mandate for Flood Insurance (Fordham Environmental Law Journal) on SSRN. Here's the abstract:
The National Flood Insurance Program is in flux — and under attack. On March 13, 2014, Congress passed the Homeowner Flood Insurance Affordability Act, delaying and dismantling many of the reforms it had put in place just twenty months earlier, when it passed the Biggert-Waters Flood Insurance Reform Act of 2012. Today, flood insurance is both a critical part of the country’s approach to dealing with the rising flood threat posed by climate change and a beleaguered and perpetually broke symbol of governmental ineptitude, leading to calls for its elimination. By providing federally-subsidized flood insurance, critics argue, the National Flood Insurance Program has insulated flood victims from the risks they face, encouraged development in flood prone areas and, paradoxically, increased the country’s overall exposure to flooding.
This account, however, gives short shrift to the Program’s sophistication and ability to discourage development in flood plains. In fact, the Program’s woes can largely be traced to two intertwined flaws: its weak mechanism for requiring coverage and its hesitation to charge premiums that reflect the actual risk policyholders face. In this Article, I argue that establishing an individual mandate for flood insurance, which would require all property owners in flood-prone areas to maintain policies, would do much to solve these problems and make the National Flood Insurance Program a powerful tool in the ongoing effort to mitigate our growing flood risk. By mandating coverage and charging rates that reflect the risk faced by each property, the National Flood Insurance Program could strike the difficult balance between providing a safety net to flood victims and discouraging flood-prone development, a goal that has eluded the Program over the course of its forty-six year history.
Wednesday, September 23, 2015
Evidence from the refugee crises shows that countries that have built fences have managed to successfully divert the flow of refugees to other routes;
Greece built a razor-wire fence in 2012 to block a short stretch of its border with Turkey that was a popular land crossing for migrants. It also increased security along the Evros River, which forms the remainder of the border. This is the first of several barriers that merely diverted the flow of migrants from Turkey, pushing them to Bulgaria or onto boats headed for Greek islands in the Aegean Sea.
Angela Riley (UCLA) & Kristen Carpenter (Colorado) have posted Owning Red: A Theory of Indian (Cultural) Appropriation (Texas Law Review) on SSRN. Here's the abstract:
In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group the cultural expressions and resources of another. While these and other incidents are currently in the headlines, American Indians often experience these claims within an historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands and artifacts, bodies and religions, identities and beliefs, all toward the project of conquest and colonization. Indian resources have been devalued by the law and made available for non-Indians to use of their own purposes. Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright, to the First Amendment and Fifth Amendment, and some have been more successful than others. As a matter of property law, courts have compensated - albeit incompletely - the taking of certain Indian lands and has also come to recognize tribal interests in human remains, gravesites, and associated artifacts. When it comes to intangible property, however, the situation is more complicated. It is difficult for legal decision-makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions. Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources. To advance understanding of this contested area of law, this Article situates intangible cultural property claims in a larger history of the legal dispossession of Indian property - a phenomenon we call “Indian appropriation.” It then evaluates these claims vis à vis prevailing legal doctrine, and offers a normative view of solutions, both legal and extralegal.
Christopher Newman (George Mason) has posted Bailment and the Property/Contract Interface on SSRN. Here's the abstract:
This article seeks to contribute to both the theory of private law and our understanding of bailment doctrine. Building on earlier work by Thomas Merrill and Henry Smith, I offer a revised model of the interplay between property and contract, one that incorporates the concept of license. Applying this model to bailment doctrine, I find that it resolves certain problems that have long vexed the field, including the nature of a constructive bailment and the standard of liability for so-called “contractual deviation.”
Monday, September 21, 2015
Blake Hudson (LSU) has posted Relative Administrability, Conservatives, and Environmental Regulatory Reform (Florida Law Review) on SSRN. Here's the abstract:
Both critics and supporters of federal environmental law have called for its reform. Conservative scholars and policy-makers in particular have called for reform due to the size, scope, and cost of the federal environmental bureaucracy. To date, however, conservatives have offered no meaningful, realistic alternative environmental protection policies. This article argues that greater use of geographic delineation policies at the state and local level offer an important opportunity to reduce the size, scope, and cost of the federal environmental bureaucracy while at the same time achieving the environmental gains sought by the staunchest supporters of federal environmental law. To date, conservative scholars and policy-makers have not been supportive of these long-available policies, rendering them largely unutilized — contributing to the growth of federal environmental intervention. This article argues that geographic delineation policies implemented at the state and local level are actually consistent with a number of the most valued principles of conservatism, primarily due to their high relative administrability when compared to federal statutes. That is, the administration of these policies achieves the most environmental gain at the lowest cost, and geographic delineations implemented through state and local land use planning offer the best hope for conservatives who would see the nation’s system of environmental laws reformed.
Sheila Foster (Fordham) & Christian Iaione (Marconi University) have posted The City as a Commons on SSRN. Here's the abstract:
As rapid urbanization intensifies around the world, so do contestations over how city space is utilized and for whose benefit urban revitalization is undertaken. The most prominent sites of this contestation are efforts by city residents to claim important urban goods — open squares, parks, abandoned or underutilized buildings, vacant lots, cultural institutions, streets and other urban infrastructure — as collective, or shared, resources of urban communities. The assertion of a common stake or interest in resources shared with others is a way of resisting the privatization and/or commodification of these resources. We situate these claims within an emerging “urban commons” framework embraced by progressive reformers and scholars across multiple disciplines. The urban commons framework has the potential to provide a discourse, and set of tools, for the development of revitalized and inclusive cities. Yet, scholars have failed to fully develop the concept of the “urban commons,” limiting its utility to policymakers.
In this article, we offer a pluralistic account of the urban commons, including the idea of the city itself as a commons. We find that, as a descriptive matter, the characteristics of some shared urban resources mimic open-access, depletable resources that require a governance or management regime to protect them in a congested and rivalrous urban environment. For other kinds of resources in dispute, the language and framework of the commons operates as a normative claim to open up access of an otherwise closed or limited access good. This latter claim resonates with the social obligation norm in property law identified by progressive property scholars and reflected in some doctrines which recognize that private ownership rights must sometimes yield to the common good or community interest.
Ultimately, however, the urban commons framework is more than a legal tool to make proprietary claims on particular urban goods and resources. Rather, we argue that the utility of the commons framework is to raise the question of how best to manage, or govern, shared or common resources. The literature on the commons suggests alternatives beyond privatization of common resources or monopolistic public regulatory control over them. We propose that the collaborative and polycentric governance strategies already being employed to manage some natural and urban common resources can be scaled up to the city level to guide decisions about how city space and common goods are used, who has access to them, and how they are shared among a diverse population. We offer two evolving models of urban commons governance in cities around the world as examples of these strategies when scaled up to the city level: the sharing city and the co-city.
Friday, September 18, 2015
PatentlyO describes a fascinating landlord/tenant dispute:
Banksy is a pseudonymous British street artist known for satirical and subversive graffiti. In 2014 one of his paintings appeared on the back wall of a game arcade in Folkestone(See image). The building was owned by Stonefield Estates Ltd but the entire building is subject to a 20-year lease to Dreamland Leisure. Seeking to capitalize on the work, Dreamland had the section of wall removed and put up for sale. (The Wall Now) Dreamland justified this move based upon the lease, which included a provision that would arguably require the tenant to remove or paint-over the artwork.
The Landlord (Lessor) transferred its rights to the work in quitclaim form to the Creative Foundation – a registered charity seeking to promote the art scene in Folkestone – who then sued Dreamland for possession.
The Landlod ends up winning the case. The case is fascinating for the variety of topics it touches: the tension between leases as contracts and as conveyances, the duty to repair, accession, fixtures, trespass, and remedies.
David Reiss (Brooklyn) has posted Underwriting Sustainable Homeownership: The Federal Housing Administration and the Low Down Payment Loan (Georgia Law Review) on SSRN. Here's the abstract:
The United States Federal Housing Administration (“FHA”) has been a versatile tool of government since it was created during the Great Depression. The FHA was created in large part to inject liquidity into a moribund mortgage market. It succeeded wonderfully, with rapid growth during the late 1930s. The federal government repositioned it a number of times over the following decades to achieve a variety of additional social goals. These goals included supporting civilian mobilization during World War II; helping veterans returning from the War; stabilizing urban housing markets during the 1960s; and expanding minority homeownership rates during the 1990s. It achieved success with some of its goals and had a terrible record with others. More recently, the FHA is in the worst financial shape it has ever been in.
Today’s FHA suffers from many of the same unrealistic underwriting assumptions that have done in so many other lenders during the 2000s. It has also been harmed, like other lenders, by a housing market as bad as any seen since the Great Depression. As a result, the federal government recently announced the first bailout of the FHA in its history. At the same time that it has faced these financial challenges, the FHA has also come under attack for the poor execution of some of its policies to expand homeownership. Leading commentators have called for the federal government to stop using the FHA to do anything other than provide liquidity to the low end of the mortgage market. These critics rely on a couple of examples of programs that were clearly failures but they do not address the FHA’s long history of undertaking comparable initiatives. This article takes the long view and demonstrates that the FHA has a history of successfully undertaking new homeownership programs. At the same time, the article identifies flaws in the FHA model that should be addressed in order to prevent them from occurring if the FHA were to undertake similar initiatives in the future.
In order to demonstrate this, the article first sets forth the dominant critique of the FHA. Relying on often overlooked primary sources, it then sets forth a history of the FHA and charts its constantly changing roles in the housing finance sector. In order to give a more detailed picture of the federal government’s role in housing finance, the article also incorporates the scholarly literature regarding (i) the intersection of race and housing policy and (ii) the economics and finance literature regarding the role that down payments play in the appropriate underwriting of mortgages for low- and moderate-income households. The article concludes that the FHA can responsibly address objectives other than the provision of liquidity to the residential mortgage market. It further proposes that FHA homeownership programs for low- and moderate-income families should be required to balance access to credit with households’ ability to make their mortgage payments over the long term. Such a proposal will ensure that the FHA extends credit responsibly to low- and moderate-income households while minimizing the likelihood of future bailouts.
Gregory Dolin (Baltimore) & Irina Manta (Hofstra) have posted Taking Patents (Washington and Lee Law Review) on SSRN. Here's the abstract:
The America Invents Act (AIA) was widely hailed as a remedy to the excessive number of patents that the Patent & Trademark Office issued, and especially ones that would later turn out to be invalid. In its efforts to eradicate “patent trolls” and fend off other ills, however, the AIA introduced serious constitutional problems that this Article brings to the fore. We argue that the AIA’s new “second-look” mechanisms in the form of Inter Partes Review (IPR) and Covered Business Method Review (CBMR) have greatly altered the scope of vested patent rights by modifying the boundaries of existing patents. The changes in the boundaries of the patent grant made it significantly more likely that the patent owner would see his patent invalidated. This new state of affairs has already reduced the value of some patents that were obtained before the AIA became effective, and further declines will likely follow. We show on the basis of constitutional takings jurisprudence that the loss of value that some patent owners have suffered as a result of the new procedures — even if their patents have not been specifically subjected to them — potentially compare with physical takings and definitely fall under the umbrella of regulatory takings. The way to remedy these failings is for the government either to change its procedures or provide just compensation to the patent owners that received patents from the PTO before the enactment of the AIA.
Wednesday, September 16, 2015
A New York Times editorial summarizes a recent lawsuit by the National Fair Housing Alliance:
Americans commonly — and mistakenly — believe that well-to-do black people no longer face the kind of discrimination that prevents them from living anywhere they can afford. But a federal housing discrimination complaint filed last week by the National Fair Housing Alliance shows that this toxic problem is very much with us, nearly 50 years after Congress outlawed housing discrimination in the Fair Housing Act.
The complaint, and the investigations that led to it, shows how real estate agents promote segregation — and deny African-Americans the opportunity to buy into high-value areas that would provide better educations for children and a greater return on their investments.
Over the course of nearly a year, the alliance reports, black and white testers posing as home buyers had drastically different experiences when they contacted a real estate company near Jackson, Miss. Agents often declined to show properties to black customers who were better qualified than whites, with higher incomes, better credit scores and more savings for down payments. Meanwhile, white testers who had expressed interest in properties in the majority-black city of Jackson were steered into majority-white communities elsewhere.
[...] Despite being better qualified financially, black and Latino testers were shown fewer homes than their white peers, were often denied information about special incentives that would have made the purchase easier, and were required to produce loan pre-approval letters and other documents when whites were not.
Moreover, real estate agents enforced residential and school segregation by steering home buyers into neighborhoods based on race. Whites were encouraged to live where the schools were mainly white; African-Americans where schools were disproportionately black; and Latinos where schools were disproportionately Latino.
Kristen Barnes (Akron) has posted Recognition and Reflection (Texas A&M Journal of Real Property Law) on SSRN. Here's the abstract:
This Article examines the theories of Peter M. Gerhart, as expounded in his book, Property Law and Social Morality. The critique emphasizes the necessity of incorporating the origins of property systems within any socially responsible theory of property and of accounting for the critical voices within systems that may raise important ethical objections to the allocation of resources.