Thursday, April 28, 2016
The Transactional Records Access Clearinghouse (TRAC), housed at Syracuse University, is a super helpful organization that I've used for a number of years now. The group issues TracReports that provide free monthly information on, among other things, civil litigation throughout the U.S. federal district courts. One item of interest that the group reports on deals with the number of new foreclosure filings each month. Check out this latest report:
The latest available data from the federal courts show that during March 2016 the government reported 505 new foreclosure civil filings. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this number is up 12.7 percent over the previous month when the number of civil filings of this type totaled 448. The comparisons of the number of civil filings for foreclosure-related suits are based on case-by-case court records which were compiled and analyzed by TRAC (see Table 1).
When TRAC last reported on this matter, foreclosure lawsuits had declined from a peak reached in May and June of 2012 but seemed to have bottomed out in January 2014. Indeed, as can be seen in Figure 1, the monthly count remained relatively stable from that point until about a year ago. When foreclosure civil filings for March 2016 are compared with those of the same period in the previous year, their number was up by nearly one third, or 32.7 percent. Filings for March 2016 are still substantially lower than they were for the same period five years ago however. Overall, the data show that civil filings of this type are down 25.1 percent from levels reported in March 2011.
Top Ranked Judicial Districts
Relative to population, the volume of civil matters of this type filed in federal district courts during March 2016 was 1.6 per every million persons in the United States. One year ago the relative number of filings was 1.1. Understandably, there is great variation in the per capita number of foreclosure civil filings in each of the nation's ninety-four federal judicial districts. Table 2 ranks the ten districts with the greatest number of foreclosure lawsuits filed per one million population during March 2016.
The District of Nevada — with 15.9 civil filings as compared with 1.6 civil filings per one million people in the United States — was the most active through March 2016. The District of Nevada was ranked first a year ago, while it was ranked fourth five years ago.
The District of Rhode Island ranked second and also ranked second a year ago.
The Southern District of Illinois now ranks third.
Recent entries to the top 10 list were Vermont, the Northern District of Georgia (Atlanta) and the Western District of Kentucky (Louisville), which are ranked seventh, eighth and sixth, respectively.
The federal judicial district which showed the greatest growth in the rate of foreclosure civil filings compared to one year ago — up 700 percent — was the Western District of Kentucky. Compared to five years ago, the district with the largest growth — 239 percent — was the Northern District of Florida.
Sunday, April 24, 2016
Chris Odinet (Southern) has posted The Unfinished Business of Dodd-Frank: Reforming the Mortgage Contract (SMU Law Review) on SSRN. Here's the abstract:
The standard residential mortgage contract is due for a reappraisal. The goals of Dodd-Frank and the CFPB are geared toward creating better stability in the residential mortgage market, in part, by mandating more robust underwriting. This is achieved chiefly through the ability-to-repay rules and the “qualified mortgage” safe harbor, which call for very conservative underwriting criteria to be applied to new mortgage loans. And lenders are whole-heartedly embracing these criteria in their loan originations — in the fourth quarter of 2015 over 98% of all new residential loans were qualified mortgages, thus resulting in a new wave of credit-worthy homeowners that are less likely than ever before to default. As a result of this and other factors, the standard form residential mortgage contract, with its harsh terms and overreaching provisions, should be reformed. This is necessary not only due to the fact that such terms should no longer be needed since borrowers are better financially positioned than in the past, but also because of a disturbing trend in the past few years where lenders and their third party contractors have abused the powers accorded to them by the mortgage contract — mostly through break-in style foreclosures. This Article argues for a reformation of the Fannie Mae/Freddie Mac standard residential mortgage contract and specifically singles out three common provisions that are ripe for modification or outright removal.
April 24, 2016 in Common Interest Communities, Home and Housing, Law & Economics, Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recent Cases, Recent Scholarship | Permalink | Comments (0)
Please see the attached call for panels and papers for the 2016 Society of American Law Teachers (SALT) Teaching Conference! Proposals are due by June 15, 2016. We look forward to seeing you in Chicago this fall!
Friday and Saturday, September 30 and October 1, 2016
The John Marshall Law School, Chicago, Illinois
The Central States Law Schools Association 2016 Scholarship Conference will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND.
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.
Registration will formally open in July. Hotel rooms are already available, and more information about the CSLSA conference can be found on our website at www.cslsa.us.
Friday, April 22, 2016
I have just returned from a wonderful PostDoc Conference at the Max Planck Institute in Hamburg. This was my first trip to Max Planck and it was outstanding. In fact, beyond outstanding. If you are presented with the opportunity to go, don’t think twice, just say yes.
During the conference, two papers were presented on comparative community property law. The authors, Pablo Quinzá Redondo (University of Valencia) and Paulina Twardoch (L’Université de Silésie à Katowice), do not receive regular shout outs on this blog, so I wanted to highlight their exciting work.
Redondo’s paper, Substantive and Conflict-of-Laws Aspects of Matrimonial Property Regimes in the European Union, detailed the movement over the past five years to codify a conflict-of-law regime for matrimonial property in the EU. Redondo highlights that throughout EU countries, there are differences in both the substantive laws of marital property and the private international law rules. As to the former, the civil law countries of the EU—France, Spain, etc.—have matrimonial property (aka community property), whereas the common law countries like England have what we would term in the United States separate property. With regards to conflict of laws, England and Wales tend to take a lex fori approach, while the other countries have adopted various national conflict-of-law principles. These differences make difficulties for the growing number of cross-border marriages throughout the EU. Redondo analyzes the recent movement throughout the EU to create a unified conflict-of-laws approached for matrimonial property and asserts that such a unified system would be superior to the current system.
Twardoch’s paper, La Proposition de Règlement Européen en Matière de Régimes Matrimoniaux de la Perspective du Droit Polonais, discussed the Polish perspective on the movement to unify EU conflict-of-law rules as they pertain to matrimonial property. Twardoch notes that Poland’s stated dispute with the unification movement has been that the proposed conflict-of-law rules apply to all marriages, including same-sex marriages. (In case it is not obvious, Poland is in the group of EU countries that constitutionally prohibits same-sex marriage.) Twardoch’s task, then, is to examine how application of the proposed EU rules would impact matrimonial property in Poland. She does so by looking at a number of areas of matrimonial property and family law, including prenuptial agreements, obligations of spouses, and inter-spousal donations, to name a few.
Both papers were excellent and deserve mentioning for that reason alone. However, it also reminded me that legal issues arising in the United States occur everywhere. In the United States, there are nine community property jurisdictions. Married couples move regularly, and it is not uncommon for spouses to move from a separate property state to a community property state or vice versa. U.S. courts struggle with what conflict-of-law rules should apply to such spouses. So far, there are at least seven different sets of rules that courts in different jurisdictions have applied to such mobile spouses. (Check out chapter 21 of the textbook Community Property in the United States if you want to read more on this topic.) Following Obergefell, how community property laws, equitable distribution laws at divorce, and a variety of distribution laws at death have caused consternation for judges across the country. One of my co-bloggers, Chris Odinet (Southern University), has written on this topic with a friend of ours, Andrea Carroll (LSU). No doubt more on the topic will be (and should be) written. By watching what happens in the EU, the U.S. may gain insights as to how to handle our similar issues in the area of community property.
NBA star Carlos Boozer once rented his house to Prince and things did not go well:
Chicago Bulls forward Carlos Boozer once rented his Beverly Hills house to Prince, and Boozer's former Duke teammate Jay Williams described Tuesday some of Prince's redecorating.
"Booz told me how he had this massive house ... blue fountain waves kind of came down streaming water that led to the front door and all this great stuff," Williams said on "The Waddle & Silvy Show" on ESPN 1000. "And I remember him calling me, 'Dude, you will never guess, I rode past my house like three times, I had no idea it was my house.'
"Supposedly, Prince changed the front gate to the Prince sign, he changed the master bedroom to a hair salon, he changed the streaming blue waters that led to the front door to purple water, he knocked out walls, he changed the molding on top of the ceiling. Booz was livid. So pissed off, so angry ... He put his Purple Rain stamp on it ... Booz was like, 'I was getting ready to go over there and beat this little man down.' And dude was just like 'Here, Boozer, here is a little check for about a million, it'll take care of everything, get it back the way you want it.' And Booz was like , 'This little man is cool as hell.'"
Boozer did end up suing Prince. You can see the complaint here.
Thursday, April 21, 2016
Jonathan Klick (Penn) & Gideon Parchomovsky (Penn) have posted The Value of the Right to Exclude: An Empirical Assessment (Penn Law Review) on SSRN. Here's the abstract:
Property theorists have long deemed the right to exclude fundamental and essential for the efficient use and allocation of property. Recently, however, proponents of the progressive property movement have called into question the centrality of the right to exclude, suggesting that it should be scaled back to allow the advancement of more socially beneficial uses of property. Surprisingly, the debate between the opponents and detractors of the right to exclude is devoid of any empirical evidence. The actual value of the right to exclude remains unknown.
In this Article, we set out to fill this void by measuring, for the first time, the value of the right to exclude. To that end, we use the passage of the Countryside and Rights of Way Act in England and Wales in 2000 as a natural experiment to provide some empirical insight on this issue. We show that the Act’s passage led to statistically significant and substantively large declines in property values in areas of England and Wales that were more intensively affected by the Act relative to areas where less land was designated for increased access. While property prices may not capture all social value, our findings provide a critical input to the debate regarding access to private property. Given that the access rights provided by the “right to roam” included in the Act represent seemingly minimal intrusions on private property, our findings indicate that property owners view even small restrictions on their right to exclude very negatively.
We believe that our findings are of significant importance to lawmakers in the U.S. as they provide an empirical basis for policymaking in the realms of property and land use. In the U.S., private property rights enjoy constitutional protection under the Takings Clause of the Fifth Amendment. Hence, any attempt to formalize a general right to roam or other intrusions on the right to exclude may require the government to pay just compensation to affected property owners. Our study suggests what the compensation amounts are likely to be. This information would allow law-makers to make better decisions about the social desirability of various land use measures. We would like to emphasize that our findings should not be read as a call against the adoption of a right to roam, or any other public privilege. Our only goal is to furnish a much needed empirical foundation that would permit law-makers to conduct a more precise cost-benefit analysis of different policies.
Steve Calandrillo (Washington), Chryssa Deliganis (Independent), & Christina Elles (Independent) have posted The Vested Rights Doctrine: How a Shield Against Injustice Became a Sword for Opportunistic Developers (Ohio State Law Journal) on SSRN. Here's the abstract:
While the vested rights doctrine is based on an understandable estoppel rationale, developers are increasingly using it as a sword to thwart reasonable regulation instead of as a shield against injustice. Common sense policy has too often been co-opted by opportunistic developers at the expense of the public interest – witness the unfettered explosion in fracking operations across America as well as new urban centers being installed in particularly inappropriate locations, oftentimes in contravention of sensible smart growth or growth management policies. The situation has become so perverse that one elected official argued that manipulation of the vested rights doctrine is “the least sexy but probably one of the most important aspects of environmental law” today.
It is past time that we restore balance to the vested rights doctrine in order to prevent the best intentions of legislatures and public policy makers from going awry. Local governments must have the power to update land use laws and regulations as new information becomes available and as public policy preferences change. This can be done without destroying private property rights as we know them, or imposing unreasonable transaction costs on the development community.
Tanya Marsh (Wake Forest) has posted Because of Winn-Dixie: The Common Law of Exclusive Use Covenants (Miami Law Review) on SSRN. Here's the abstract:
As a condition of entering into a lease for space in a shopping center, tenants with significant bargaining power often require landlords to promise that no other occupant of the shopping center will sell certain goods or services. This promise, contained in the lease, is known as an “exclusive use covenant” because it establishes the beneficiary’s right to be the exclusive provider of particular goods or services in a defined area. Grocery store tenants, like Winn-Dixie, typically require the landlord to promise that no other tenant will sell more than a de minimus amount of food items intended for off-premises consumption. Over the past decade, so-called “dollar stores” retailers, like Dollar Tree, Dollar General, and Family Dollar, selling discount, convenience products, including food items, have aggressively expanded. Grocery store chains, fearing increasing competition from the dollar stores, have sought to enforce their exclusive use covenants against landlords and the dollar stores.
In particular, Winn-Dixie has been involved in litigation against various dollar stores for more than a decade. Winn-Dixie filed a string of lawsuits, each addressing a single violation, until 2011, when it filed lawsuits in federal court against the owners of three national dollar store chains, alleging breaches of its exclusive use covenant at 136 shopping centers in Alabama, Florida, Georgia, Louisiana, and Mississippi. The three lawsuits were consolidated into a single case, Winn-Dixie Stores, Inc. v. Dolgencorp, L.L.C.
On March 5, 2014, the Eleventh Circuit Court of Appeals issued its decision in Dolgencorp. The court considered the interpretation of key terms in the exclusive use covenants, the enforceability of the covenants against third-party tenants, and the remedies available to Winn-Dixie following a breach of the covenants. The opinion concluded years of litigation between the parties, but it also left important questions regarding exclusive use covenants unsettled. This article outlines the history of the dispute between Winn-Dixie and the dollar stores, the doctrinal issues addressed by the Eleventh Circuit, and the lingering uncertainties that face retail landlords and tenants with respect to exclusive use covenants, particularly in Florida.
Tuesday, April 19, 2016
Casey Faucon (Denver) has posted The Suspension Theory: Hurricane Katrina Looting, Property Rights, and Personhood (Louisiana Law Review) on SSRN. Here's the abstract:
In anticipation of Hurricane Gustav, Mayor C. Ray Nagin announced, “Anyone caught looting in New Orleans will go directly to the Big House...You will go directly to Angola Prison, and God bless you if you go there.” In making that announcement, Mayor Nagin undoubtedly had the events following Hurricane Katrina in mind. Three years earlier, Hurricane Katrina engulfed the city of New Orleans. When the storm passed and the waters rose, New Orleans was in chaos. Media reports of people vandalizing and looting stores portrayed the image that the city had disintegrated into a state of anarchy. Such reports depicted the looters as heartless criminals who wrongfully took advantage of the disaster-stricken city. But this negative mentality against looting in the aftermath of natural disasters is not reflected in the Louisiana criminal legislation. The penal code establishes a less harsh punishment for looting that occurs after a state of emergency, as opposed to looting that occurs in any other circumstance.
These are just two examples of the broad spectrum of how the law and society view the actual criminality of looting after natural disasters. Although some people regard the looting of “luxury goods” as unconscionable, others sympathize with and excuse looters who take only “necessity goods.” Perhaps the conscious distinction has less to do with society’s moral perceptions of looting and more to do with society’s perceptions of ownership. Professors Eduardo M. Penalver and Sonia Katyal argue that society negatively views “property outlaws” because such individuals undermine the stability that property laws strive to produce. Looters, as a particular type of property outlaw, contribute to the fracturing of that stable foundation. Instead of dismissing property outlaws as rebellious, subversive characters, Penalver and Katyal suggest that society should embrace the property outlaw as an enabler of the “reevaluation of, and, at times, productive shifts in the distribution or content of property entitlements.”
This Article demonstrates how, after natural disasters like Hurricane Katrina, society’s reaction to looters depends upon the extent to which the looter disrupts the pre-existing property rights under Louisiana property law. To facilitate this discussion, this Article uses a theory first articulated by renowned sociologists and group behavioral theorists Enrico Quarantelli and Russell Dynes — what this Article terms the “Suspension Theory.” This theory illuminates the causal relationship between property rights and societal reactions to looting in different situations.
Luke Meier (Baylor) has posted The Neglected History Behind Preble v. Maine Central Railroad Company: Lessons from the 'Maine Rule' for Adverse Possession (Hofstra Law Review) on SSRN. Here's the abstract:
Under the “Maine Rule” for adverse possession, only possessors having the requisite intent can perfect an adverse possession claim. The Maine Rule has been consistently criticized. The history behind the adoption of the Maine Rule, however, and the purpose it was to serve, have been ignored. This Article fills that void. This inquiry leads to some surprising revelations about the Maine Rule. The Maine Rule was originally adopted so as to distinguish prior Maine cases rejecting adverse possession in mistaken boundary situations. The purpose behind the Maine Rule, then, was to enable — rather than prohibit — adverse possession. The history surrounding the adoption of the Maine Rule has contemporary value; this history powerfully demonstrates the pitfalls of using a claimant’s state of mind as part of an adverse possession analysis.
Sunday, April 17, 2016
Eleven Publishing and Juta have jointly released the two volume book series: Rethinking Expropriation Law. The volumes contain works by Eduardo Peñalver (Cornell), Michael Heller (Columbia), Rick Hills (NYU), Henoch Dagan (Tel Aviv), John Lovett (Loyola-NOLA), Gregory Alexander (Cornell), Bjorn Hoops (PhD Candidate-University of Groningen), Ernest J. Marais (University of Johannesburg), Hanri Mostert (University of Cape Town), Jacques A.M.A. Sluysmans (Radboud University), and Leon C.A. Verstappen (University of Groningen). The work looks fascinating, particularly because it deals with this important issue from so many different and global perspectives.
Volume I is titled Public Interest in Expropriation. Cribbing from the publisher, here's a summary:
This book is the first of a series in which experts engage critically with identified aspects of expropriation law. The internationally diverse group of contributing authors offer valuable insight into the treatment of public purpose/interest related issues as they are canvassed in jurisdictions around the world. Some of these include:
- the public purpose/interest requirement and the definition of the object of expropriation;
- the role of public purpose/interest in distinguishing between expropriation and regulation of property;
- public interest and the classification of expropriatory actions as administrative, statutory or constructive;
- categorising of the notions of public interest and public purpose;
- justifiability of expropriation without compensation;
- consequences of a change in purpose after expropriation has been effected;
- whether an expropriation can be challenged on the basis that less invasive means were available for the state to realise the specific purpose;
- whether the public interest could legitimately entail transfer of expropriated property to a party other than the state.
Volume II is titled Context, Criteria, and Consequences of Expropriation. Publisher's overview as follows:
This book is the second of a series in which experts engage critically with the context, criteria and consequences of expropriation. The State, in the shape of monarchies, dictatorships, or democracies, has been using expropriation to implement its policies since the times of ancient Rome. This book therefore contains contributions on the historical context of expropriation. Despite its age, however, expropriation law is constantly evolving at the national and international level. The contributors show how European human rights law and international soft law instruments shape national criteria and expropriation procedures. They discuss how comparative law and insights from the theory of human flourishing can help to improve the criteria for the justification of expropriation. From comparative and international perspectives, the contributors deal with the criteria that determine whether compensation is due for a regulatory taking, constructive expropriation or excessive regulation of property. The contributors examine the definition of takings and whether the dissolution of condominium constitutes a taking. They uncover how the amount of compensation can play a role in the justification of expropriation. Lastly, the contributors examine the consequences of expropriation for residential communities.
Friday, April 15, 2016
Wian Erlank (North-West University - South Africa) has posted Rethinking Terra Nullius and Property Law in Space (Potchefstroom Electronic Law Journal) on SSRN. Here's the abstract:
With a new era dawning with regard to access to space and an increase in the number of nations capable of reaching and exploiting space, the field of space law as a whole needs to be re-evaluated. One such area where current legal thinking needs to be examined is with regard to the property rights to objects in space. While it was sufficient in the past for governments to frown upon the institutions of ownership in outer space and leave many space-related issues unresolved, one would need to re-examine the current body of space-law and related international instruments in the light of the ability of private enterprises’ and other new players’ ability to partake in and commercially exploit space travel. This paper investigates whether property rights should be available to space-faring nations and individuals, as well as how these rights could be acquired. Also very important is how these rights could be limited or structured in such a way as not to unnecessarily interfere with the aims of current space law. Characteristics such as the impersonality, tangibility, independence, susceptibility to control, and the usefulness and value for mankind of an object in space will once again be of crucial importance when it is necessary to determine if it can be classified as an object with regard to which one can have property rights. This is discussed against the background of objects that are deemed to be res nullius (things belonging to nobody) as well as the theory of terra nullius (land belonging to nobody).
Thomas Simmons (South Dakota) has posted Deploying the Common Law to Quasi-Marxist Property on Mars (Gonzaga Law Review) on SSRN. Here's the abstract:
If and when the first human settlement arrives on Mars, it may be with the intention of staying on permanently. Progress and the spirit of adventure being what they are, the first group of settlers may be joined some time thereafter by a second. In anticipation of two groups of settlers on Mars who may compete over scarce suitable landscapes for sustaining the basic human needs of oxygen, energy, water, shelter and food, a framework of private property rights is necessary. In crafting possible frameworks, the 1967 Outer Space Treaty’s (OST) governing provisions regarding property law must be considered. Existing scholarship has largely failed to properly account for the application of common law precepts to realistic property disputes governed by OST provisions, to fully acknowledge the non-appropriation and common use commands of the OST, which sound, arguably, in quasi-Marxist tones, and to explicate the types of unique property demands of permanent extraterrestrial human settlements. This article maps out two basic common law frameworks for two anticipated varieties of property disputes which adhere to the general and more specific principles contained within the OST while encouraging economically efficient decision-making and sustainable uses of the planet surface.
Thursday, April 14, 2016
Lawrence White (NYU - Econ) has posted Housing, Housing Policy, and Housing Finance: Time for a Re-Assessment (Milken Institute Review) on SSRN. Here's the abstract:
Although the topic of housing – housing prices, housing policy, housing finance – has largely fallen by the wayside as a “hot” news item, these issues remain largely unresolved. This paper reviews the recent history of housing finance and housing policy, examines the realistic policy choices, and offers some recommendations.
Shitong Qiao (Hong Kong) has posted The Evolution of Chinese Property Law: Stick by Stick? (Book Chapter) on SSRN. Here's the abstract:
Chinese land reform has managed to maintain and disintegrate state and collective land ownership simultaneously by discarding the unitary conception of ownership. It is consistent with the idea that “property comprises a complex aggregate of social and legal relationships” rather than being “the simple and nonsocial relation between a person and a thing.” Regardless of Chinese legal scholars’ enthusiasm for or leftists’ hatred of the idea of individuals having sole and despotic dominion over private property, law and policy makers of Chinese land reform have often taken a more pragmatic approach, reconfiguring land rights in China “stick by stick.” The two main achievements of Chinese land reform, i.e., the establishment of land use rights (LURs) in the urban area and the establishment of land management and contract rights (LMCRs) in the rural area, are examples of the stick by stick approach. The ideological debate over privatization, in contrast, has more often intensified conflicts within the country’s political system. When such ideological enthusiasm dominates the law-making process, it hampers land reform, as exemplified in the making of the 2007 Property Law. It is therefore misleading to ask who owns and who prevails in the context of Chinese land reform. The better question is how the bundle of sticks is arranged among government, communities, and individuals. This bundle of rights metaphor, or conception of legal relations, as Michael Heller calls it, is useful because society is generating more forms of property than the simple thing-ownership metaphor captures. This chapter also examines the recent policy developments following the third plenum of the 18th Congress of the Chinese Communist Party (CCP) and finds that law and policy makers have stuck to the stick by stick approach. The chapter develops its arguments by reviewing the major property laws and policies over the past three decades to outline the basic contours of the Chinese property system.
Wednesday, April 13, 2016
The map above shows one year of wanderings for a famous grizzly bear known as "The Boss." The majority of his travels occurred in busy transportation corridors, including the famous Bow River Valley between Banff and Lake Louise, which contains a railroad, the two-lane Bow Valley Parkway, and the four-lane Trans-Canada Highway (his story is available here). He has managed his travels rather well, managing to avoid accident save for one encounter with a train. Which he survived, of course, because he's the Boss.
Because most of my students will end up working in small towns (and I include Boise as a "small town"), I like to spend time on those aspects of land use and property law that are relevant to life on the wildland-urban interface. In the western United States, these conversations generally focus on wildfire, but there are also significant effects on wildlife. Unfortunately, I have found that while people (including both law students and land owners) generally understand the significance of fire in the wildland-urban interface, they don't react with the same openness to land-use regulations designed to protect wildlife. I like to use the land-use regime of Teton County, Wyoming in my land use class, both because it is a beautiful place many of my students are familiar with, and because it has an impressive array of provisions designed to protect wildlife, from the obvious grizzly bears and bald eagles to cutthroat trout and mule deer. Among other things, the regulations contain standards for wildlife-friendly fencing, define ten different vegetative cover types with different levels of protection, protect migration corridors, and contain requirements for bird feeder placement so as to avoid unwanted interactions with bears.
But it is surprising that in a place where many of my students hunt, fish, hike, and spend a lot of time outdoors, there are often some rather negative reactions to these requirements. These are students who love wild places--I once had a student from a very small town in eastern Oregon describe to me an experience out hunting when he was briefly surrounded by a howling wolf pack; he unashamedly said it was one of the most beautiful experiences of his life. But many of these students (reflecting the broader public) still find regulating the bird feeder, or protecting presently unoccupied migration routes, to be questionable legally, and a violation of their property rights. Apparently, loving wild places and understanding wild places, at least how the law might interact with those places, are two different things.
It is one of the contradictions of the legal (or any) profession that we are proud to claim, and are jealous of, a specialized expertise, while we simultaneously complain about the layperson's lack of legal knowledge. But the greatest failing of the law is not that the layperson doesn't understand it, but rather that the judge, lawyer, and law professor don't understand the rest of the world. We just covered Rapanos v. United States in Environmental Law. While it is likely easy to find lawyers and law professors who will commend the legal reasoning of the plurality opinion, it would be difficult to find the same level of respect among hydrologists or ecologists. Those people who know and study the "waters of the United States" likely would tell you that the plurality opinion demonstrates a fundamental lack of understanding about how the world works.
The Boss's wanderings around Canada's highways reminded me of my own neighborhood. A few weeks ago, just as I was about to turn the corner to walk down my street, my wife called with a warning to be careful. It wasn't that she had heard reports of a prowler in the neighborhood, at least not the typical kind. As we were talking, I turned the corner to see two moose happily browsing on the tree in my neighbor's front yard. Although we live in the middle of suburbia--at least the Moscow, Idaho form of suburbia--this is not a rare occurrence. We have had moose in our yard several times, including one young moose who spent a couple of days sitting under a tree in our front yard happily snacking on our bird feeder. Once a year or so, the University sends out the always humorous "Moose on Campus!" alert. We're at the point where we almost don't take notice--a few years ago we asked my son if anything exciting had happened at school. "Not really" he responded. Didn't a moose walk right through your playground, while you where there? "Oh.... Yeah." Those moose are part of our neighborhood, our place, and thus our law, whether we recognize it or not.
Assessing the appropriateness of law, whether it be wetland regulation or bird feeder placement, requires moving beyond the canons of construction, IRAC, and the "thinking like a lawyer" that so stresses 1Ls each fall. It requires thinking about how moose might travel across a landscape, connecting wetland function to downstream water quality, and understanding the interactions of bears, highways, and bird feeders. Lawyers who work in property, land use, and natural resources law should look at that map of The Boss's wanderings and immediately think about how law and the bear might interact, and how the law we craft for the future should understand, intricately, the lands and places it emerges from.
As previously mentioned, Hillary (or at least the Clinton family) is one of two presidential candidates that have actually used eminent domain. In 2001, the Clinton Presidential Library used eminent domain to take Eugene Pfeifer III’s land in Little Rock, Arkansas. Pfeifer objected to the taking, claiming that a presidential library was not a public use because it was not a public park, but the Arkansas Supreme Court unanimously disagreed and upheld the seizure of land. (If Wikipedia is to be believed, the Pfeifer-Clinton dispute didn’t end in 2001, so I’m guessing he’s not supporting Hillary this election cycle.)
So given that eminent domain has been used by the Clintons, one would assume the Democratic frontrunner is, at a minimum, not opposed to the Fifth Amendment. Right?
Well, to be honest, it’s hard to find out what Hillary’s stance is on eminent domain. Unlike the Republicans, this has not been an issue brought up in Democratic debates or TV commercials. Even back when there were three Dems in the race—remember when Martin O’Malley was in there?—the Fifth Amendment didn’t come up.
There a shocking number of conspiracy theories on the Internet about Clinton giving the Chinese government eminent domain rights to secure American debt, but those are quite obviously fictitious (not to mention economically impractical and constitutionally invalid).
But what does Hillary really think about eminent domain?
That’s the $64,000 question.
As best as my research shows, Clinton has said nothing—zilch, nada, zippo—about eminent domain this election cycle or last Presidential election cycle or during her Senate career. In fact, I can’t even find a vote she’s taken on the topic. Remember how we saw that Sanders voted no in 2007 on an amendment to that year’s Farm Bill Extension Act which would prohibit the federal government from taking farmland or grazing land for “parks, open space, or similar purposes”? If you are wondering how Clinton voted because she was in the Senate in 2007, too, the answer is simple: she didn’t vote. (Note: Neither did Obama or McCain. It was December 2007 so everyone was busy running for President.)
So with no votes, no floor speeches, and no crazy political advertisements, the best I can do is to speculate about her position on eminent domain. Here goes nothing:
I speculate that Clinton is not opposed to the use of eminent domain, or even the public use definition from Kelo, but does not view that as a winning issue to campaign on.
This is my hypothesis because of other positions Clinton has taken. Hillary is now against the Keystone pipeline, but c’mon, everyone knows she’s not that against Keystone. The Keystone pipeline unquestionably requires using eminent domain.
Hillary is generally pro-government. Pro-government = government power = generally thumbs up on eminent domain.
But if Clinton is pro-eminent domain (which, again, is just my hypothesis), why not add that to her “America is already great, let’s use government to keep it that way” platform? If she does, then that gives the Cruz’ of the world and the Sanders’ of the world the opportunity to make the following syllogism:
Eminent domain kicks little old ladies out of their houses to build casinos.
Trump likes eminent domain.
Trump likes to kick little old ladies out of their houses to build casinos.
Clinton likes eminent domain. Clinton likes to kick little old ladies out of their houses to build casinos.
Clinton = Trump.
Yes, anyone supporting Clinton or Trump will immediately argue that the syllogism is invalid, but campaigns can be impervious to truth, so no need to tout an issue that is really a non-issue for most Democrats and can be used by opponents to cut unpleasant campaign ads.
So there you have it. For an individual who has been in the public spotlight for a relatively long period of time, there is shockingly little about Hillary’s views on eminent domain. At least shockingly little public information about her views on the topic—perhaps all of her private speeches to Goldman Sachs et al were on the topic of the Fifth Amendment.
Sunday, April 10, 2016
(Photo: ABA RPTE)
Professors’ Corner's FREE monthly webinar featuring a panel of law professors, addressing topics of interest to practitioners of real estate and trusts/estates.
Sponsored by the ABA Real Property, Trust and Estate Law Section Legal Education and Uniform Laws Group
Tuesday, April 12, 2016
12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific
An Introduction to Islamic Law and Finance
Haider Ala Hamoudi, Associate Dean for Research & Faculty Development, University of Pittsburgh School of Law
Michael J.T. McMillen, Partner, Curtis, Mallet-Prevost, Colt & Mosle, New York, NY
Moderator: · R. Wilson Freyermuth, John D. Lawson Professor and Curators’ Teaching Professor, University of Missouri
School of Law
Many U.S. lawyers are aware that Islamic finance prohibits the taking of interest on a loan, but are not particularly well-informed about other practices and prohibitions respecting the actual operation of Islamic finance. This webinar will provide this general background, with a particular focus on the manner in which Islamic finance can be used in the context of real estate financings and other real estate transactions. The program will begin with an introduction into what Islamic finance is, and what its primary rules are. The speakers will then discuss general means through which Islamic finance operates without breaking formal prohibitions respecting the taking of interest or engaging in excessive forms of speculation. The program will conclude by describing how Islamic finance operates in depth with particular, practical examples concerning the use, transfer, and finance of real estate.
Register for this FREE webinar by clicking here.
Friday, April 8, 2016
When last we blogged (which was a while ago, my apologies), we learned that Trump won’t dump the Fifth Amendment, Cruz can be TRUSTed to not use eminent domain (unless it’s to build a wall between the United States and Mexico), and Kasich is happily warrior-ing on somewhere in between. Now on to the Democrats!
It’s been a big week for Bernie, filled with ups and downs. First he had a tough meeting with the Daily News Editorial board, then he won Wisconsin, then he noticeably did not attack Clinton in his victory speech, then he went to the other extreme in Philadelphia and said Hillary was not qualified to be President. The Communications team for Senator Sanders must be running on coffee fumes after the busy week they have been having!
As a self-proclaimed democratic socialist, my expectation was that Sanders would be pro-eminent domain given that the Fifth Amendment advances government ownership of formerly private property for a public use. That certainly fits in line with a socialist agenda. And Sanders did not let me down. In December 2007, Senator Sanders voted no on an amendment to that year’s Farm Bill Extension Act, which would prohibit the federal government from taking farmland or grazing land for “parks, open space, or similar purposes.” This makes sense. To grossly oversimplify Sanders’ semi-socialist view:
public parks > private farmland
This led me to Kelo and wondering what would Sanders think. Strong use of government power would not be offensive to Sanders’ philosophy, but the factual end result of the case was a middle-class individual being ousted from her house by a private corporation, and that struck me as antithetical to Sanders war against the economic and political oligarchy. What’s then-Representative Sanders to do? As predicted, Sanders was not hot to trot for Kelo. At the time of the decision, Sanders said, “I believe that the result of [Kelo] will be that working families and poor people will see their property turned over to corporate interests and wealthy developers.” To Sanders credit, that is essentially the same line he has used throughout the entire campaign about, well, everything, so he’s got a consistent message. Again, to oversimplify Sanders’ brand of socialism:
land held by individuals of modest means > land held by Pfizer
But there is a little more to the Sanders-Kelo story. Representative Sanders was also among the largely Democratic minority that voted against an amendment in June 2005 offered to that year’s House Transportation Appropriations Bill that prohibited using any funds appropriated by the bill to enforce Kelo. You read that last run-on sentence correctly. An amendment was made to the Transportation Appropriations Bill in 2005 that said none of the tens of billions of dollars in the bill could be used for any purpose that would help enforce the Supreme Court’s decision in Kelo. If a member of Congress’ dislike of Kelo was, as Trump would say, huuuuuuuuuge, one way to stop it was to vote for the amendment, which is what a number of Democrats and a lot of Republicans did. But Sanders didn’t. He voted against the amendment meaning he voted to allow federal money to be used to enforce the judgment. For Sanders, this vote could have been more about separation of powers than his true views on Kelo. He did not make any floor speeches on the specific amendment so who knows what he was thinking at the time, but perhaps it was something like this:
separation of powers > using Congressional authority to defund Court’s authority
If that’s what Sanders was thinking, then I say good for him. What all of his other statements and votes on eminent domain seem to indicate is that while his pro-government values push him to look favorably on takings, he’s got result-oriented sunglasses on that impact his ultimate decision.
Last up, Hillary who, like Trump, has previously used eminent domain. What will she say on the topic? Tune in soon to find out!