PropertyProf Blog

Katz on Property's Sovereignty

Larissa Katz (Toronto) has posted Property's Sovereignty (Theoretical Inquiries in Law) on SSRN.  Here's the abstract:

This paper shows how property rights might be fundamental to the very nature of our legal order while admitting that the modern realities of taxation, regulation, and expropriation are not attacks on property rights as such. By distinguishing between a principle of sovereignty, which I argue constitutes the core authority of owners, and a principle of accession, which I argue regulates the distribution of benefits and burdens attached to the position, we can see how this is so. Attacks on property rights as such would be, rather, acts by the state that deny the basic sovereign authority of owners, by subordinating owners to the private choices of others.

Jimmy Carter to Help Decide Who Gets MLK's Bible

Trying to sell the family bible? Oy:

The children of the late Dr. Martin L. King, Jr. have been in a public dispute over their father’s legacy and belongings. There have been many who have worked both behind-the-scenes and in public to call for a resolution to this fight. However, these efforts failed, as the fight even entered the court system. At issue is the possession and use of Dr. King’s personal Bible as well as his actual Nobel Peace Prize. There is no doubt that Dexter, Bernice, and Martin L. King, III have every right to determine their father’s legacy. But the brothers contend that a 1995 agreement also gives King’s estate ownership of their father’s property. However, Bernice states that the Bible and Nobel Peace Prize belonged to their mother, the late Coretta Scott King and is not a part of that agreement. Her brothers, however, wanted to sell the Nobel medal and Bible to unknown parties. The Bible is considered even more important because President Obama used it to be sworn into office as the nation’s first Black president.

In an effort to mediate this issue, former US President Jimmy Carter has agreed to step in and help. Carter stated, “I am honored to be working with the King family in an effort to resolve the outstanding legal issues relating to their remarkable family legacy. I have great respect for each of the three heirs of this legacy. They are working diligently with me, and I believe we will be able to resolve these difficult disputes once and for all.”

Infranca on Micro Housing Units and the Sharing Economy

John Infranca (Suffolk) has posted Spaces for Sharing: Micro Units Amid the Shift from Ownership to Access (Fordham Urban Law Journal) on SSRN.  Here's the abstract:

This article, written for the Fordham Urban Law Journal’s symposium entitled Sharing Economy, Sharing City: Urban Law and the New Economy, explores the interaction between the sharing or peer-to-peer economy and new forms of housing, particularly micro-units. Certain components of the sharing economy, such as car sharing and co-working, rely on sufficient demand, typically produced by residents within close proximity to an asset-hub. Trade in the idle capacity of privately-owned goods frequently depends upon potential users sufficiently nearby to render sharing convenient. Land use regulations that permit development of micro-units may increase density to levels that better support a sharing economy infrastructure. The sharing economy is also frequently invoked to explain consumer demand for such units – as potential residents choose to forego space and rely on shared resources. Developers have sought to make micro-units more attractive to potential residents by providing access, sometimes on-site, to car and bicycle sharing. Such resources also may ease worries of neighbors concerned about increased density and some local governments have begun to consider the provision of sharing economy infrastructure in the land use approval process. In addition, certain new forms of residential development more expressly incorporate a culture of sharing and at times explicitly identify as a component of the sharing economy.

This article sketches out some of the theoretical and practical implications of the relationship between micro-units and housing more generally and the sharing economy. Even as many micro-unit residents embrace the sharing economy to complement their small living spaces, these units provide residents with an alternative to perhaps the simplest form of contemporary property sharing – living with roommates. They represent a turn away from certain informal sharing of property (kitchen items and food, living room furniture, music and book collections) towards more formal sharing through the peer-to-peer economy. The new exchanges of personal property facilitated by the sharing economy thereby simultaneously enable the increased privatization of an individual’s residence.

As the sharing economy reshapes cities it is also changing the types of housing demanded by urban residents. This article suggests that as cities revise existing regulations to respond to both the growing demand for micro-units and the expanding role of the sharing economy in urban areas, they should more carefully consider the potential synergies between these phenomena.

Mollah on Hindu Women's Right to Property

Ifran Mollah (Eastern University - Bangladesh) has posted Hindu Women's Right to Property at the Crossroads: The Tension between Human Rights and Cultural Relativism (Journal of Society and Change) on SSRN.  Here's the abstract:

Property rights of women under Hindu religious system have fairly been considered an issue of conflicting discourse both from domestic as well as global perspective. Restrictions imposed by Religio-legal as well as socio-cultural norms and practices have embedded the discriminatory level of treatment in more deep rooted dimension for Hindu women as to property rights. This controversy has been excelled with the pressure of global community for establishing a fair and equal property rights while assessing the feasibility and implications of universal rights regime disregard of religious or cultural differences. In the course of time, intervention of legislative authority for improvising present situation and to make the whole rights regime at national level to synchronize with universal rights framework through the amendment of existing domestic laws has proved to be successful. Nevertheless, in the context of practical enforcement, bringing the equilibrium of justice in between religious command and secular authority has created double jeopardy for the legislative authority. In this backdrop, the theory of cultural relativism has been resorted to eliminate the standoff between religious norms & practices of a particular community and the demand of global community for fair and equal treatment of all. Cultural relativists have been heavily criticized for being too defensive as against the principle of universality and supporting discrimination and abuse of human rights in different circumstances. Hence, it is essential to revisit the role of Religio-legal, universal and socio-cultural theory and practices in establishing the domain of equal status of right to property for Hindu women.

Serkin on Peter Gerhart's 'Property Law and Social Morality'

Christopher Serkin (Vanderbilt) has posted From Social Recognition of Property to Political Recognition by the State: Peter Gerhart's 'Property Law and Social Morality' and the Evolution of Positive Rights (Texas A&M Journal of Real Property Law) on SSRN.  Here's the abstract:

This solicited symposium piece responds to Peter Gerhart's book, "Property Law and Social Morality". Gerhart offers an interesting evolutionary account of property that seeks to bridge the gap between natural rights theorists and positivists. He separates out distributional concerns from positive law, and therefore explicitly limits the reach of the Takings Clause. This response argues that property is inherently redistributive, and that the Takings Clause plays a role in mediating redistributive pressures. It ultimately argues that the State is an active and not a passive player in the definition of property rights, contrary to Gerhart's theory.

The Conflicting Goals of American Housing Policy

Daniel Hertz considers the tension at the heart of American housing policy:

Here are two ideas that, if you’re like most Americans, you probably mostly agree with:

1. Government policy should help keep housing broadly affordable, so as not to price out people of low or moderate incomes from entire neighborhoods, cities, or even metropolitan areas.

2. Government policy should protect residential neighborhoods from things that might negatively impact housing values, because homes are an important investment and wealth-building tool.

Having read them together like that, you’ve probably already jumped ahead to the big reveal, which is that these two ideas are almost entirely mutually exclusive. The first essentially says, “Use housing policy to keep home prices down”; the second says, “Use housing policy to keep home prices up.”

It’s no wonder, then, that housing policy is a bit confused. The same municipal governments that require that housing on scarce urban land be taken up only with resource-intensive, high-building-cost single family homes; that use zoning to separate out unwanted apartments, shops, transit lines, and other uses on the grounds that they might hurt home values; and promote neighborhood beautification and other projects on the grounds that they will raise housing values, also issue affordable housing reports trying to understand why home prices aren’t lower, and levy “impact fees” on new development for the alleged crime of, you know, raising home values.

Brady on State Courts and the Expansion of Takings Clause Property

Molly Brady (Yale - Ph.D.) has posted Property's Ceiling: State Courts and the Expansion of Takings Clause Property (Virginia Law Review) on SSRN.  Here's the abstract:

The federal and nearly all state constitutions include takings clauses providing that private property shall not be taken for public use without just compensation. To the extent that scholars have considered the role of state courts with regard to these takings clauses, they have focused on constitutional limits on judicial restrictions as to what constitutes property. Little attention has been paid, however, to how state courts can expand the definition of private property — and the problems associated with that capability.

Through an original case study derived from unexamined historical sources, this Article explores the complex questions raised by constitutional property creation. It tells the story of a series of nineteenth and twentieth century cases on street grading, in which property owners sought relief when municipal officials vertically shifted streets — sometimes in excess of a hundred feet — to improve transportation. Though these regrades often loomed over people’s homes or left them stranded on inaccessible cliffs, government officials contended that because the regrades did not physically take any property, abutting owners could not bring takings claims. In response, state courts created a novel “right of access” to land and treated it as constitutional property confiscated by the regrades, an innovation which entitled affected owners to compensation for the serious damages their property suffered.

As this history demonstrates, state courts can play an important and desirable role in takings law by recognizing new forms of constitutional property. But courts should not have unfettered discretion to invent new rights and then find them taken, as this may incur significant administrative and systemic costs. This Article therefore presents a framework for identifying constitutional property interests derived from both the street grade cases and other precedents, arguing that it can effectively cabin inappropriate expansions of what constitutes private property for takings purposes while keeping the important structural function of constitutional property innovation intact.

San Francisco’s “Airbnb Measure”

The American Spectator has a piece on a November ballot initiative in San Francisco:

Both proponents and opponents of San Francisco’s “Airbnb measure” — Proposition F — see the November ballot initiative as a David vs. Goliath contest. Both sides also see themselves as David. And both sides have a point.

The measure would impose additional restrictions on short-term rentals. Supporters can claim to be the little guys because the deep-pocketed opposition — headlined by the home-sharing technology platform Airbnb — has $8 million to bury the less than $400,000 raised by the “yes” campaign, according to proponent Dale Carlson. Prop F does have high-profile supporters, notably Sen. Dianne Feinstein, but when the other side outspends you by a 20-1 ratio, you can call yourself the underdog.

The No on F folks also stand for the little guy (or gal) who rents out a guest room to make ends meet. San Francisco Supervisor Scott Wiener says he opposes the measure because more and more of his constituents rely on Airbnb. Many are women, often older women, who are “house poor” and presently could not afford to buy the homes they bought years ago. They don’t want to take on a full-time roommate; they also enjoy the energy young travelers bring with them. “The one thing they have is that spare bedroom,” Wiener told the San Francisco Chronicle’s editorial board last month. If Prop F is approved, “they are going to get thrown under the bus.”

Hernández-López on the Sriracha Shutdown

Ernesto Hernández-López (Chapman) has posted Sriracha Shutdown: Hot Sauce Lessons on Local Privilege and Race (Seton Hall Law Review) on SSRN.  Here's the abstract:

In 2013, Huy Fong Foods, maker of the trendy hot sauce sriracha, fought in court to stay open. The Los Angeles suburb of Irwindale tried to enjoin all sauce production, arguing that "offensive chili odors" created a public nuisance. This was an unexpected development because Huy Fong was recently invited to relocate to Irwindale and air quality regulators found no problems. Sauce lovers and the media closely watched this spicy legal drama, dubbed the "sriracha-apocalypse." Originally created for Vietnamese phở soup, sriracha is extremely popular worldwide.

This conflict points to a suburban racialized exclusion, sourced in municipal legal powers. With a population that is over ninety percent Latino, Irwindale was incorporated to capitalize on racial divisions. Mining companies sought these divisions in order to benefit from low taxes. Incorporation created a legal privilege in municipal powers to exclude outsiders. Irwindale's public nuisance lawsuit to shutdown sriracha exemplifies such a tactic. Eyeing this food conflict, this Article uses critical approaches to race and geography to illustrate the influence local government law has on race relations in the suburban United States. This Article also illustrates how municipal legal powers result in racialized exclusion, despite race neutral legal positions and a lack of racist animus.

The House of the Future?

A house that produces more energy than it consumes, and laughs off hurricanes.

Echeverria & Blumm on Horne v. Department of Agriculture

John Echeverria (Vermont) & Michael Blumm (Lewis & Clark) have posted Horne v. Department of Agriculture: Expanding Per Se Takings While Endorsing State Sovereign Ownership of Wildlife (Maryland Law Review) on SSRN.  Here's the abstract:

In Horne v. Department of Agriculture, the Supreme Court expanded its so-called per se analysis under the Takings Clause to government actions impairing possession of personal property. The Court decided that a New Deal era agricultural program effected a taking by requiring raisin growers to turn over a portion of their crops in certain years to a governmental body that disposes of the raisins in noncompetitive markets. The raisin marketing program, which by law only persists with continuing support from the raisin industry itself, aims to control the market supply of raisins, and thereby elevate and stabilize the prices received by raisin growers. Despite the unusual character of the program, a majority of the Court ruled that certain dissident raisin growers were entitled to prevail on their theory that government "appropriations" of personal property interests in raisins were governed by the same per se takings rule that applies to government appropriations of real property.

The Court's analysis of the takings issue is problematic for a number of reasons , including 1) the fact that these particular plaintiffs, who were proceeding in the capacity of raisin "handlers," were not the actual owners of the raisins at issue, and therefore could not legitimately claim a taking of their private property; 2) the Court's modern precedents and traditional practice support the idea that government has broader latitude in controlling personal property than real property, contradicting the Court's new per se rule; 3) there was a substantial question as to whether the program imposed an unconstitutional taking of property "without just compensation, " given the significant offsetting benefits growers received from this price support system; and 4) the Court failed to give the government the opportunity to defend the conditions imposed on raisin growers by showing that that the conditions satisfied the standards articulated in Nollan v. California Coastal Commission and Dolan v. City of Tigard. Each of these issues provided a proper basis for affirming the Ninth Circuit’s rejection of the takings argument. Nevertheless, Chief Justice John Roberts’ majority opinion either ignored or skimmed over all these issues and applied a per se takings rule to this context. Figuring out the implications of the Horne decision for drug forfeiture laws, unwholesome food recalls, and animal cruelty statutes has been left to other days and other cases.

The Horne decision did include an unexpected result of considerable benefit to government defendants, however: the Court distinguished the raisin marketing program from a similar program involving oysters that it upheld against a takings challenge in a 1929 decision. The Chief Justice explained that, unlike raisins, oysters were public property. The Court thereby ratified the venerable but somewhat misunderstood doctrine of sovereign ownership of wildlife. States employ this doctrine, inherited from England and nearly universally adopted by American states, to uphold wildlife conservation regulations and defeat claims of private ownership. Often referred to as the “wildlife trust,” the doctrine is the kind of “background principle” of property law that the Court recognized as defeating claims of takings in its 1992 decision of Lucas v. South Carolina Coastal Commission.

In this article we examine the Horne decision in some detail. Although the case does extend the Court’s takings jurisprudence to an uncertain extent by applying the per se analysis to personal property, we think the long-term ramifications of the decision lie in the Court’s recognition of the sovereign ownership of wildlife. That doctrine not only will defeat private takings claims but should sanction affirmative regulation of wildlife and protection for its habitat, authorize government actions to recover damages against those harming wildlife and wildlife habitat, and reinforce public standing to enforce the wildlife trust.

Map of the Day: Each State's Favorite Halloween Candy

This map shows an enormous amount of diversity in America's candy preferences.  Arizona, I salute your classy pick of Toblerone.  People of Oregon, Wyoming, Tennessee, Texas, and South Carolina - I'm giving you side-eye. Who thinks it's ok to give out candy corn on Halloween?  Bleh.

Shagaida on Russia’s Policy of Agricultural Land Privatization

Natalia Shagaida (Gaidar Institute) has posted Russia’s Policy of Agricultural Land Privatization: A Total Lack of Coherence (Russian Economic Developments) on SSRN.  Here's the abstract:

When the issues of land privatization are considered from the point of view of the situation existing in agriculture, it becomes evident that the currently practiced approaches to privatization are not properly geared to such factors as the actual state of the objects of privatization or the need to address directly a certain economic issue, and do not rely on international best practices. We believe it is absolutely counter-productive even to talk about land privatization in Russia until its mechanisms and the risks associated with its implementation are made clear, and until a special body for managing this country’s land resources is created.

Claeys on Sparks Cases

Eric Claeys (George Mason) has posted Sparks Cases in Contemporary Law and Economic Scholarship (Book Chapter) on SSRN.  Here's the abstract:

“Sparks cases” arose in the late 19th century, when sparks from newly laid railroads caused fire damage to adjacent landowners. Sparks cases have become a staple example in law and economic scholarship over the last generation. This entry uses those cases to contrast the differences between leading approaches to law and economics and Austrian economics. Sparks cases illustrate concretely important differences between welfare-maximizing and order-securing legal theories of regulation. Many leading law and economic works assume that legal actors can maximize the welfare created from incompatible resource disputes; in sparks cases, such theories assume that legal actors may and should choose the regime of tort liability most likely to maximize the joint product from a railroad right of way and adjacent land. Austrian economics focus on basic ordering, for it presumes that information shortfalls, subjective value, and changing resource uses all make it prohibitively difficult for legal actors to identify the highest and best uses of resources in conflict. In such constraints, the tort principles that regulate sparks disputes should be designed around simple and clear property boundaries, so that railroad operators are strictly liable for fires caused on land owners’ lots by sparks from their trains.

This basic Austrian critique may be applied in other, more recent, and more complex fields of regulation. If scholars hope to expose a wider audience of legal scholars to this critique, however, they must integrate Austrian themes better into the normative frameworks and scholarly categories applied by legal scholars.

Does Gentrification Improve Public Schools?

Nikole Hannah-Jones does some reporting for Grist:

It would seem that white residents moving into segregated black and brown neighborhoods can only be positive for local schools, though, right? Those wealthier families’ tax dollars must be, at least, invested in neighborhood schools. And when those families send their children to these schools, it has to improve the school services, which are then shared with their new neighbors, no?

Except, they aren’t.

[...] “There are many ways to opt out of the neighborhood schools and gentrification has a limited effect on public schools,” said  Mincere Keels, a University of Chicago professor, who focuses on race and inequality. “Many of the policies of urban education are focused around bringing upper-income families back into the public school system based on the assumptions that they will come into these neighborhoods and invest in the neighborhood schools and revitalize both the neighborhoods and schools,” she said. “But families that move into neighborhoods that are low-income often opt out of the neighborhood schools and these higher income families take their individual household resources with them and contribute them to” other schools.

Hepburn & Jaynes on Rights of Removal

Samantha Hepburn (Deakin University - Australia) & Steve Jaynes (Deakin) have posted The Nature and Scope of Rights of Removal (Property Law Review) on SSRN.  Here's the abstract:

The rationale underlying the fixtures and accession presumptions is the need to protect the value of the chattel as well as the need to protect third-party interests. The destruction of the independent legal status of an attached chattel is generally deemed appropriate where the value of the co-mingled asset will be diminished if the chattel retains a separate legal title and this would generate unfairness because third parties have dealt with the co-mingled asset on the basis of its overall value. Rights to remove have evolved under both common law and equity to moderate the scope of these presumptions. Common law will uphold the right of a tenant to remove chattels that have been attached to leased premises during the currency of the lease. Equity on the other hand will uphold the right to remove affixed chattels in circumstances where the enforcement of such an entitlement is consistent with contractual intention and transactional fairness. This article examines the different rights of removal that have evolved under Australian law to date and the emergent statutory framework supporting these rights. It discusses the historical purpose and structural utility of these entitlements within a land framework that supports fixtures presumptions. Rights of removal, whether validated at law or in equity, confer positive entitlements upon the holder to access and remove affixed goods in circumstances where, because of the fixtures and accession presumptions, those goods no longer retain any separate legal status. The capacity of the holder to enforce this right against third parties is illustrative of their distinctive proprietary perspective.

Fennell on Co-Location and Land Use Priorities

Lee Fennell (Chicago) has posted Co-Location, Co-Location, Co-Location: Land Use and Housing Priorities Reimagined (Vermont Law Review) on SSRN.  Here's the abstract:

This brief essay was delivered in slightly different form as the 2014 Norman Williams Distinguished Lecture in Land Use Planning and the Law at Vermont Law School. It begins with the premise that what matters most to a home’s value is not location, in the sense of a geographic map point, but rather co-location, or a home’s position relative to other land uses and land users. Although this proposition might seem obvious, taking co-location seriously can change the way we think about housing policy and about land use priorities more generally. A focus on co-location illuminates the significance of lumps or chunks of value that are produced by complementary uses, shows how land use policy can help achieve them, and highlights the conflicts that can arise among competing aggregations of value. I suggest some policy approaches that can leverage the power of co-location — from an expanded understanding of what land use decisions fall under the rubric of housing policy to the possibility of planning ahead for portability.

Call for Papers: The Future of Detroit

The University of Detroit Mercy Law Review is celebrating its 100th anniversary with an academic Symposium to be held on March 4, 2016. This Symposium will showcase the past, present, and future of the City of Detroit, and will gather scholars, policy makers, and community members to discuss the past, present, and future of Detroit.

Articles submitted may focus either on a specific era – past, present, or future – or they may trace a specific subject through the past, present, and propose future solutions. Specific topics could include, but are not limited to:

1. The Past
   o Civil rights and race relations
   o Labor law
   o Relationship between the City and the suburbs (or the rest of Michigan)

2. The Present
   o The Impact of the Bankruptcy
   o Efforts to eradicate blight and abandoned buildings o Public Education in Detroit

3. The Future
   o Impact of new developments on the future of Detroit
   o Relations between the City and the suburbs
   o The role of the law in developing new economic opportunities

The Law Review invites interested individuals to submit an abstract for an opportunity to present at the Symposium. Those interested should send an abstract of 250-300 words that details their proposed topic and presentation. Included with the abstract should be the author’s name, contact information, and a copy of their resume/curriculum vitae. Since the above list of topics is non- exhaustive, the University of Detroit Law Review encourages all interested parties to develop their own topic to present at the Symposium. In addition, while submitting an article for publication is not required to present at the Symposium, the Law Review encourages all speakers who are selected to submit a piece for publication in the Fall 2016 edition of the Law Review.

The deadline for abstract submissions is October 26, 2015. Individuals selected to present at the Symposium will be contacted by November 2. Law Review editorial staff will contact those selected for publication at a later date regarding details and deadlines for full-length publication.

The submissions, and any questions regarding the Symposium or the abstract process, should be directed to Law Review Centennial Symposium Director Katherine Ross at [email protected].

McDougall on Gentrification

Harold McDougall (Howard) has posted Gentrification: The Class Conflict Over Urban Space Moves into the Courts (Fordham Urban Law Journal) on SSRN.  Here's the abstract:

Gentrification of inner-cities has resulted in a class conflict over urban space. An issue in the federal courts is whether the Department of Housing and Urban Development (HUD) can build, sponsor, or subsidize low income housing projects within or near revitalized neighborhoods. In Stryker’s Bay Neighborhood Council v. Karlen, the United States Supreme Court held that HUD’s decision-making process relating to the placement of low income housing is beyond judicial review. This Article reviews recent litigation in Philadelphia, Chicago and Boston in light of Stryker’s Bay, and concludes that in order to protect federal efforts to maintain the integrated character of inner-city neighborhoods, HUD must amend its regulations to deal with the reality of gentrification. HUD should define gentrified areas and recognize that such areas are ideal for integrated housing, so that the federal courts do not have to step in, resulting in delay.

Burling on Novel Takings Theories

James Burling (Pacific Legal Foundation) has posted Novel Takings Theories: Testing the Boundaries of Property Rights Claims (Brigham-Kanner Property Rights Conference Journal) on SSRN.  Here's the abstract:

A lot of what passes for standard takings theory today would have been summarily rejected a generation or two ago. Who could have complained when the government showed up with trucks to haul off half of a farmer's raisins? Who could dispute the government's right to demand tribute in exchange for a permit? Or, who could not argue that there's been a taking when the government sends a satellite over one's home? The point is, today we're pretty sure the first two examples are takings, but the last one is not. But how do we distinguish the novel yet viable theories from the frivolous?

This paper argues that novelty in takings claim can be good and transformative -- but only when 1) there are good and sympathetic facts to lay bare the realities of the burdens imposed by government regulation on ordinary citizens, 2) there are some well-honed theories in support of government liability and 3) there is some intellectual respectability for those theories.