Wednesday, September 16, 2015
Melinda Benson (New Mexico - Geography) has posted Shifting Public Land Paradigms: Lessons from the Valles Caldera National Preserve (Virginia Environmental Law Journal) on SSRN. Here's the abstract:
The Valles Caldera National Preserve is the largest and most ambitious public land management experiment in the United States’ history. Congress created the Preserve in 2000 as a wholly owned Government Corporation managed not by a federal agency, but instead by a Board of Trustees. The management paradigm was unique. In addition to the familiar requirements of multiple use and sustained yield, the Act included a mandate that the Preserve become financially self-sustaining. This experiment ended in December of 2014 when Congress passed a law transferring management to the National Park Service. The creation of this experiment, along with its subsequent unfolding over 14 years, provides a fascinating window into the challenges associated with public land management generally and a financially driven trust model specifically. This Article examines the Preserve’s experiment and attempts to answer the question — what did we learn? Lessons include: (1) the challenges of having a corporate identity while also complying with laws pertaining to federal agencies, (2) the ways in which NEPA can inform management via iterative processes, (3) successes in science-based of adaptive management, (4) the challenges of running a “working ranch” in the American West, and (5) opportunities to protect cultural resources and honor the religious and cultural practices of living native communities. Absent among these lessons is a clear answer regarding whether public lands can be made financially self-sustaining. The Preserve’s neoliberal charge was thwarted for many reasons, including our cultural beliefs about public lands and the role they play within the American imaginary.
Monday, September 14, 2015
The Detroit Free Press takes a long look at Quicken Loans' Dan Gilbert, who is buying up huge chunks of downtown Detroit:
This month marks the five-year anniversary of Gilbert's move of his Quicken Loans company to downtown from the suburbs, a stunning development at the time and a major boost for a downtown real estate scene dealing with fallout from the Great Recession and the managed bankruptcies of General Motors and Chrysler. [...]
As Gilbert grew his workforce, his Bedrock Real Estate Services bought and filled historic but half-empty skyscrapers and enlivened the street scene with everything from a sandy beach at Campus Martius to bike rentals, food trucks, and basketball hoops.
Through his more than $1.5 billion in private investment, Gilbert has been one of the most potent forces behind a growing downtown Detroit renaissance aided by the positive vibes of bustling streets and sidewalks when just a few years ago downtown seemed a ghost town.
[...] Gilbert acknowledges he has riled critics who object to the extensive security operation that safeguards his properties. And some question whether one man or business entity should control so much of downtown. Gilbert said it's all in the service of creating a more vibrant city and urban core.
Susan Yeh (George Mason) has posted Revealing the Rapist Next Door: Property Impacts of a Sex Offender Registry (International Review of Law and Economics) on SSRN. Here's the abstract:
How do homebuyers respond to perceived crime risks about sex offenders in the neighborhood? I evaluate local property and crime responses to Internet sex offender registry listings. Among more permanent listings, a nearby offender depresses house prices by up to 4 percentage points. I document that the majority of registered sex offenders are transient, with durations of less than 6 months at an address. While a growing literature suggests that housing stability is important in reducing criminal behavior, the market perceives heightened crime risks to be attached to the listings of registered offenders with more stable housing, but not to those who are transient or who have moved away. Prices correspond more strongly to long-term offender locations than to locations of actual sex crimes. I find small, localized reductions in rapes involving weapons within 0.1 miles of offender addresses and increases in sex crimes farther away.
Federico Cheever (Denver) & Nancy McLaughlin (Utah) has posted An Introduction to Conservation Easements in the United States: A Simple Concept and a Complicated Mosaic of Law (Journal of Law, Property, and Society) on SSRN. Here's the abstract:
The explosion in the number of conservation easements over the past four decades has made them one of the most popular land protection mechanisms in the United States. The National Conservation Easement Database estimates that the total number of acres encumbered by conservation easements exceeds 40 million.
Because conservation easements are both novel and ubiquitous, understanding how they actual work is essential for practicing lawyers, policymakers, land trust professionals, and students of conservation. This article provides a “quick tour” through some of the most important aspects of the developing mosaic of conservation easement law. It gives the reader a sense of the complex inter-jurisdictional dynamics that shape conservation transactions and disputes about conservation easements.
Professors of property law, environmental law, tax law, and environmental studies who wish to cover conservation easements in the context of a more general course can use the article to provide their students with a broad but comprehensive overview of the relevant legal and policy issues.
Thursday, September 10, 2015
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 2016 AALS Annual Meeting in New York. The breakfast will take place at 7:30 am on January 7, 2016.
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 Donald J. Kochan (Chapman University Fowler School of Law), Secretary of the AALS Section on Property, at firstname.lastname@example.org by September 30, 2015. A review panel consisting of seven property scholars will select three to five 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 mid-October. 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 Kristen Barnes (University of Akron School of Law), Chair of the AALS Section on Property, email@example.com, or Professor Kochan at firstname.lastname@example.org.
Andrea Boyack (Washburn) & Robert Berger (U.S. Bankruptcy Court) have posted Bankruptcy Weapons to Terminate a Zombie Mortgage (Washburn Law Journal) on SSRN. Here's the abstract:
Bankruptcy’s strongest public policy is the possibility of a fresh start for a borrower – a way for a debtor to free himself from the burdens of pre-petition obligations and re-commence his or her financial life. A debtor can surrender property burdened by a lien to the lien-holder and thereby release him or herself from ongoing obligations under the loan. This is true even in cases where the collateral’s value is less than the secured loan – for in bankruptcy, a lender’s secured claim is limited to the value of its lien. In chapter 13, a debtor who elects to keep secured property must pay off the secured claim through an acceptable plan, and if the debtor opts to liquidate the secured property, then the debtor may sell it free and clear of liens if it is authorized to do so under § 363 of the Bankruptcy Code.
This straightforward method of wiping the slate clean in bankruptcy has recently been threatened by home mortgage holders’ reluctance to foreclose. If the secured lender refuses to accept a debtor’s surrender and foreclose on its lien, the mere filing of bankruptcy will not operate to release the borrower from legal responsibility for property carrying costs and associated liabilities. In cases of foreclosure delay, the defaulted mortgage becomes impossible to kill off completely, even when a borrower has abandoned the home and sought a bankruptcy fresh start. This undead mortgage prevents the property from entering the flow of commerce and poses a barrier to acquisition by a new owner willing to shoulder its upkeep. Neighborhoods and municipalities also pay the cost of zombie mortgages, as years can drag by with no resident owner paying homeowner association dues or property taxes. Furthermore, vacant, unmaintained properties pose a safety hazard and drive down community property values. Borrowers and communities have tried – with varying success – to address this zombie mortgage apocalypse with creative tools, as have bankruptcy debtors and courts.
When mortgage lenders refuse to foreclose real property surrendered in bankruptcy, courts have variously attempted to address the zombie mortgage. One underutilized way to kill off a zombie mortgage is to order the home be sold, free and clear of liens, under § 363 of the Bankruptcy Code. This section permits a trustee (or debtor-in-possession) to sell property free of outstanding liens in certain enumerated cases, including cases of lender assent, cases where the sale price will cover the aggregate value of liens encumbering the property, and cases where a free-and-clear sale would otherwise be available under a legal or equitable proceeding. Each of these options provides an interesting possible route to clearing title and providing a debtor with a fresh start in cases of foreclosure delay. Section 363 sales are also available in cases of a dispute about the underlying obligation, and this raises the possibility that lender misbehavior during the life of a mortgage loan can create lien vulnerability in bankruptcy.
This article explores the utility of the various subparts of § 363 as a tool to terminate zombie mortgages in bankruptcy. We believe that this bankruptcy power of sale provides a useful avenue to free debtors from the haunting shadow of a defaulted, un-foreclosed mortgage and associated involuntary homeownership. At the same time, the bankruptcy trustee sale power of § 363 can provide great community and market benefits and alleviate foreclosure crisis fallout by encouraging home occupancy and maintenance, wiping out stale liens, and releasing real property back into the stream of commerce.
Kellen Zale (Houston) has published Sharing Property (Colorado Law Review) on SSRN. Here's the abstract:
The sharing economy – the rapidly evolving sector of peer-to-peer transactions epitomized by Airbnb and Uber – is the subject of heated debate about whether activities taking place within it are so novel that no laws apply, or whether they should be subject to the same regulations as their analog counterparts. The debate has proved frustrating and controversial in large part because we lack a doctrinally cohesive and normatively satisfying way of talking about the underlying activities taking place in the sharing economy. In part, this is because property-sharing activities – renting your car to someone for a day, paying to spend the weekend in a stranger’s house – blur the familiar binary divisions of personal and commercial, gratuitous and non-gratuitous, formal and informal, that the law employs to characterize human activities. Because we lack a coherent analysis of these underlying property-sharing activities, any judgment about the sharing economy’s social value or attempts to regulate it are incomplete and confusing at best, and possibly inaccurate or counter-productive.
This Article brings clarity and coherence to this discourse by unpacking the underlying activities taking place within the sharing economy and developing a conceptual framework and taxonomy of sharing. By being more precise about what we mean when we talk about the sharing economy and situating these activities with respect to existing legal institutions and shifting social norms, this Article provides an essential foundation for future scholarship on the sharing economy, as well as for policymakers evaluating regulatory responses to the sharing economy.
Tuesday, September 8, 2015
The Real Property, Trust and Estate Law Section is sometimes referred to as consisting of two parts—dirt (real property law) and death (trust and estate law). The September Professors' Corner focuses on the place where dirt and death law literally intersect—the law of cemeteries. Although few attorneys practice "cemetery law," most real estate attorneys have confronted issues regarding the presence of human remains in marked or unmarked graves. This Professors' Corner is intended to provide an overview of the structure of the legal landscape to better prepare attorneys to confront these issues.
Tanya Marsh, the author of "The Law of Human Remains" (2015) and "Cemetery Law" (2015), will outline the structure of cemetery law in the United States. Ryan Seidemann, a trained archaeologist and Assistant Attorney General in Louisiana, will discuss the laws governing the discovery of human remains and the obligations of property owners with respect to those remains. Dean Alterman has encountered cemetery law issues many times during his career and will discuss non-cemetery uses in cemeteries, including cell towers and easements, and issues with regulators and customers.
Register now for this FREE program using your ABA ID and join us on Wednesday, September 9 for a discussion of these and other current issues with Cemetery Law and the Real Estate Lawyer.
Tanya Marsh (Wake Forest) has posted The Law of Human Remains (Book Chapter) on SSRN. Here's the abstract:
A human cadaver is no longer a person, but neither is it an object to be easily discarded. As a result of this tenuous legal status, human remains occupy an uneasy position in U.S. law. Perhaps because of what anthropologist Ernest Becker called our “universal fear of death,” the law of human remains occupies a remarkably unexamined niche of U.S. law.
The Law of Human Remains is an ambitious effort to collect, organize and state the legal rules and principles regarding the status, treatment and disposition of human remains in the United States. The most recent comprehensive overview of the law was published in 1950 (Percival Jackson's The Law of Cadavers). The Law of Human Remains builds on that work by creating detailed summaries of each individual state’s laws and regulations. This unprecedented resource allows readers to quickly identify the often fascinating differences that exist between states.
By defining and describing this neglected area of law, The Law of Human Remains simultaneously establishes the theoretical and doctrinal basis for the law of human remains and provides a framework so that attorneys and courts can more easily discover, understand, and use the law.
The first part of the book establishes the foundational principles of the common law of human remains in the United States and outlines major federal statutes on the subject. It then restates and explains legal doctrines in five categories:
(1) The Newly Dead (including legal recognition of death, presumption of death, obligations to report human remains, inquests and autopsies, and disposition of unclaimed remains);
(2) The Initial Disposition of Human Remains (including the decedent’s right to determine the place and manner of disposition, determining the rights and obligations to control disposition, the nature and scope of interment rights, and the obligation to pay funeral and disposition expenses);
(3) Disposition Options (including burial, cremation, and organ/cadaver donation);
(4) Regulation of the Funeral Industry; and
(5) Treatment of Human Remains (including abuse of corpse, disinterment, grave desecration, the possession and sale of human remains, and funeral protests).
The second part of the book includes detailed summaries of each state’s laws on each of the doctrines explained in Part I. Statutes and leading cases are cited and explained, providing a valuable resource for attorneys and courts.
James Stern (William & Mary) has posted Mutual Exclusivity and the Nature of Property on SSRN. Here's the abstract:
Property has long been understood to center on “exclusive” rights, but the nature of exclusivity in property law is poorly understood. This article shows that property is governed by a general principle of mutual exclusivity, which differs significantly from the various ways in which property theorists have described property’s exclusive nature. The mutual exclusivity principle holds that one valid property right forecloses the existence of an inconsistent property right held by someone else. While two people can have contractual rights to purchase the same item of property, for instance, those two people cannot have their own separate and independent ownerships of it. The article shows how the mutual exclusivity principle is fundamental to the structure of property law and is often the key determinant that distinguishes property from other kinds of legal relationships, in both form and function. Unlike other conceptions of exclusivity prevalent in commentary on property, mutual exclusivity holds true not only for ownership of land and physical objects but for other types of rights, such as security interests, servitudes, intellectual property, and corporate shareholding.
In addition to identifying the mutual exclusivity principle and demonstrating its fundamental role in organizing property, the article makes three other contributions to the literature on property. First, it shows how the mutual exclusivity principle explains a number of basic institutional features of property law, such as the use of possession-based rules, the system of future interests, recording acts, and the negative structure of property rights. Second, it modifies the influential theory that property is heavily shaped by problems of high information costs. Many of the ways property entails relatively high information costs result from the mutual exclusivity principle, rather than of the scope of property duties, as information cost theories often suppose. Finally, the article calls for a change in direction in the property literature more broadly, arguing that American property scholarship has been excessively preoccupied with questions about the scope and strength of property rights, overlooking the critical separate problem of ascertaining who happens to hold a given right. Property, it argues, is at least as much about title chains, patent searches, and creditor priorities as it is about trespass, remedies, and eminent domain.
Friday, September 4, 2015
What happens when boomers get too old to drive:
The oldest boomers are now just 68. But there are 78 million of them, and as they get older, the impact on suburbia will be profound. More and more of municipalities' taxes will be going to support them instead of schools and parks — Why? Because they vote a lot — while property values, and the tax base will decline as whole neighborhoods turn into senior citizens districts, with old Saturns rusting in the driveway like at my mother-in-law’s house. Transit costs will go through the roof as seniors demand services in low-density areas that cannot support it. The fact is, there is a major urban planning disaster staring us all in the face, which is going to seriously hit everyone young and old in about 10 years when the oldest boomers are 78. We have to prepare for it now.
In honor of the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days:
1. [184 downloads] Banks, Break-Ins, and Bad Actors in Mortgage Foreclosure
Christopher K. Odinet (Southern)
2. [179 downloads] Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country
Robert T. Anderson (Washington)
4. [123 downloads] The Lost 'Effects' of the Fourth Amendment: Giving Personal Property Due Protection
Maureen E. Brady (Yale)
Thursday, September 3, 2015
From Joe Singer's blog:
Pennsylvania statutes have language that might have been interpreted to require transfers of interests in land (through deeds or mortgages) to be recorded to be valid. If true, that would have undermined the MERS system of mortgage registration. But the Third Circuit gave MERS a win and interpreted Pennsylvania law to recognize mortgage transfers at the moment they are signed; recording is not required for the transfer of the property interest to be valid but is simply for the convenience of the parties and subsequent conveyees. The case, Montgomery Cty. v. MERSCORP, Inc, 2015 U.S. App. LEXIS 13482 (3d Cir. 2015), is another win for MERS among the federal Circuit Courts in a series of cases that challenged its business model.
The result of the case, as with other MERS-registered mortgages, is that there is no longer a public record of mortgage transfers since those records appear, if at all, on the computers at MERS and that information is not available to the public. Even if it were, it would be unrevealing because the banks adopted a policy of not recording mortgage transfers in any event.
Natalie Ram (Baltimore) has posted DNA by the Entirety (Columbia Law Review) on SSRN. Here's the abstract:
The law fails to accommodate the inconvenient fact that an individual’s identifiable genetic information is involuntarily and immutably shared with her close genetic relatives. Legal institutions have established that individuals have a cognizable interest in controlling genetic information that is identifying to them. The Supreme Court recognized in Maryland v. King that the Fourth Amendment is implicated when arrestees’ DNA is analyzed, and the Genetic Information Nondiscrimination Act protects individuals from genetic discrimination in the employment and health-insurance markets. But genetic information is not like other forms of private or personal information because it is shared — immutably and involuntarily — in ways that are identifying of both the source and that person’s close genetic relatives. Standard approaches to addressing interests in genetic information have largely failed to recognize this characteristic, treating such information as individualistic.
While many legal frames may be brought to bear on this problem, this Article focuses on the law of property. Specifically, looking to the law of tenancy by the entirety, this Article proposes one possible framework for grappling with the overlapping interests implicated in genetic identification and analysis. Tenancy by the entirety, like interests in shared identifiable genetic information, calls for the difficult task of conceptualizing two persons as one. The law of tenancy by the entirety thus provides a useful analytical framework for considering how legal institutions might take interests in shared identifiable genetic information into account. This Article examines how this framework may shape policy approaches in three domains: forensic identification, genetic research, and personal genetic testing. In some of these domains, experts are already advocating for policies consistent with this framework.
Rose Villazor (Davis) has posted Chae Chan Ping v. United States: Immigration as Property (Oklahoma City Law Review) on SSRN. Here's the abstract:
In this symposium Essay, I explore an overlooked aspect of Chae Chan Ping v. United States: Ping's argument that his exclusion from the United States under the Chinese Exclusion Act violated his property right to re-enter the United States. In particular, Ping contended that the government-issued certificate that he acquired prior to leaving the United States gave him the right to return to the United States. Such right was based on “title or right to be in [the United States] when the writ issued.” Importantly, Ping claimed that this right could not be “taken away by mere legislation” because it was “a valuable right like an estate in lands.” Similar to his other claims, the Supreme Court rejected this property argument. The Court’s treatment of his property claim is understandable because Ping’s contention may perhaps be described as “new property,” which did not become legible to courts until several decades later.
In reconsidering Ping’s property arguments, I aim to achieve two goals. First, as a thought piece, this Essay aims to show what the plenary power doctrine might have looked like had Ping succeeded in convincing the Court that his right to return constituted a property right. Second, this Essay highlights the intersections between property law and immigration law and the ways in which individual property rights might serve as limiting principles to the Supreme Court’s formulation of the nation’s absolute right to exclude non-citizens from the United States.
Tuesday, September 1, 2015
AMERICAN SOCIETY OF COMPARATIVE LAW
YOUNGER COMPARATIVISTS COMMITTEE
The Younger Comparativists Committee of the American Society of Comparative Law (“the Committee”) is pleased to invite submissions for the Fifth Annual YCC Global Conference, to be held on March 18-19, 2016, at Tulane University Law School in New Orleans, Louisiana. The purpose of the conference is to highlight, develop, and promote the scholarship of new and younger comparativists.
Conference Subject-Matter and Eligibility
Submissions on any subject in public or private comparative law are welcome. Eligible scholars may submit individual papers or propose fully formed panels. The Committee accepts individual paper submissions and proposals for panels (usually 3 to 4 presenters). The Committee encourages submissions and panel proposals in all areas of comparative law, and particularly in the areas of business law, insolvency, antitrust/competition law, intellectual property law, litigation, and arbitration.
Only individuals who have been engaged as law teachers, lecturers, fellows, or in another academic capacity for no more than ten years as of June 30, 2016, are eligible for individual submissions or as panel presenters. Graduate students enrolled in masters or doctoral programs are also eligible to submit proposals.
To submit an individual paper or propose a fully formed panel, scholars must email an attachment in Microsoft Word or PDF containing an abstract of no more than 750 words no later than October 30, 2015, to the following address: YCC2016AnnualConference@gmail.com.
Abstracts and panel proposals should reflect original research and thought. Submitted papers may not be published, but may have been accepted for publication at the time of the conference. Abstracts and panel proposals must include the author’s name, title of the paper, institutional affiliation, position at the institution, contact information, as well as the author’s certification that she/he qualifies as a younger scholar. Graduate students must identify themselves as such.
Each scholar may submit only one individual paper or panel proposal. Individual and co-authored papers may also be submitted. When submitting co-authored papers, both authors must qualify as eligible younger comparativists.
Proposals for fully formed panels must be organized around a common theme and include a confirmed list of the panel members and the required submission information. When submitting a panel proposal, the proposal must include the abstract of each participating presenter. For panel proposals, please also include the words “panel proposal” in the subject line of your submission email.
The Committee will group individual and co-authored papers by subject area and assign them to different panels by relevance. Concurrent panels will be held on two days, both March 18th and 19th.
Colin B. Picker Graduate Student Prize
The Third Annual Colin B. Picker Prize will be awarded for the best paper submitted by a graduate student. To be considered for the award, graduate students must first submit an abstract to the Committee by the above specified conference deadline of October 31, 2015, and have that abstract accepted for the main conference. Following acceptance of their abstract, graduate students may then submit their final papers by January 31, 2016, for consideration of the Colin B. Picker Prize. To do so the final papers must be submitted to the following email address: YCC2016AnnualConference@gmail.com and contain the subject line “Submission for Graduate Student Prize.” Papers submitted without the proper subject line and papers received after January 31, 2016, will not be considered for the award.
Authors and panel proposers will be notified of the acceptance of their submissions and proposals by no later than December 11, 2015.
Cost and Registration
There is no cost to register for the conference but participants are responsible for securing their own funding for travel, lodging, and other incidental expenses. A limited number of travel stipends may be awarded to those who demonstrate financial need. If you would like to be considered for a travel stipend, please make that request clearly in your submission. In your stipend request, please identify whether you are affiliated with an institution that is a member of the American Society of Comparative Law.
All scholars selected for the conference must submit final papers by email to YCC2016AnnualConference@gmail.com no later than February 19, 2016.
Please direct all inquiries to Professor Sally Brown Richardson, Chair of the Program Committee, by email at email@example.com or telephone at 504.865.5961.
Kenneth Reid (Edinburgh) has posted Body Parts and Property (Book Chapter) on SSRN. Here's the abstract:
The argument of this paper is that, in Scots law, separated body parts are (and ought to be) capable of private ownership, and that on severance from the body they become the property of the person from whose body they are taken. It is further argued that, where patients consent to a medical procedure, they will normally be taken to have donated to the hospital authority any tissue removed in the course of that procedure. Both doctrinal and policy considerations are examined, including (among the former) the division of things deriving from Roman law, the boundary between property rights and personality rights, the distinction between donation and abandonment, and the doctrines of occupatio and specificatio. The argument is also developed in the light of the decision of the Court of Session in Holdich v Lothian Health Board  CSOH 197, 2014 SLT 495 where, as in the English case of Yearworth v North Bristol NHS Trust  EWCA Civ 37,  QB 1, a claim was being made in respect of distress, depression, and loss of the chance of fatherhood following damage to sperm being stored by the defenders.