PropertyProf Blog

Billboard Top Ten List: The Future Interest of My Heart

Last week, my good friend, brilliant colleague, and property law scholar extraordinaire, Jim Gordley (Tulane), told me that he had been on a road trip  and listened to a good deal of country music.  In the course of listening to a series of country songs, Jim decided that country music was about two things:  love and breaking the law.  Being from the south and having listened to my fair share of country music, I have to admit that Jim is right.  Just listen to Friends in Low Places, Achy-Breaky Heart, Before He Cheats, Folsom Prison Blues, and Ol' Red and you can see for yourself.  Sure, there are some other songs about dogs and beer, but those are really in the minority.  Most country music is about love and the law.  

Given this discovery about country music, Jim decided to write his own country love song about the law.  Property law, that is.  With Jim's permission, I share his song with you.  It may not make the Billboard's Top Ten list, but it had my property law class rolling on the floor with laughter, all the while reinforcing some exciting possessory and future estate rules.

My heart is in the country

But I went to train my brain

Way down the Mississippi

To a law school called Tulane.

The law's a jealous mistress

But my heart is ever true.

A'tremblin' with passion

I sing these words to you.

 

Take all my love in life estate,

Remainder to your heirs.

It breaks the rule in Shelly's case

But darlin' no one cares.

I'll let no interest spring, or shift,

The love that I impart.

And no adverse possessor

Will ever claim my heart.

 

I assign and convey to you

That unencumbered heart

With one restrictive covenant

That we shall never part,

And this condition subsequent

That if you let it break,

Then I in my discretion

May reenter and retake.

 

YLJ Fourm Publishes Eviction Essays

While at the Texas A&M University Property Schmooze in February, one book title was mentioned at least 10 times: Matthew Desmond's (Harvard) Evicted:  Poverty and Profit in the American City (2016).  I knew of the book but, admittedly, had not read it in February of this year.  Given that everyone was talking about it, I decided to order a copy while flying back to the Big Easy.  To me, the book can be described in one word:  powerful.  Through his words, Demond gives personality to the housing struggles that are all too real for so many.  From the recovering addict tenant to the landlord who views low-income rentals as good for her business to the incarcerated renter to the victim of domestic abuse who is thrown out, Desmond breathes life into the lives of those that far too many have turned their back on.  

The Yale Law Journal Forum recently published a set of essays responding to Desmond's book. The collection of essays includes writings by Lisa T. Alexander (Texas A&M), Laurie Ball Cooper (Cohen Milstein), and Ezra Rosser (American).  

Alexander uses her essay to pitch the thesis that the right to housing is a human right.  Alexander uses her "right to housing framework" to "help cities evaluate the efficacy of their local laws, policies, plans, programs, and housing markets."  She highlights how the law on the books does not apply as perhaps it was intended for low-income renters.  Alexander then proposes how municipalities can codify superior laws and landlord-tenant regulations that address the issues facing low-income tenants while retaining the tenants' dignity.  Finally, Alexander highlights how other programs, such as the Tiny Homes for the Homeless, have offered some solutions to the problems Desmond describes.     

Cooper uses her position in practice to focus on what lawyers can do to help individuals in the position of the characters in Desmond's book.  Cooper offers a number of suggestions such as special rent protections for victims, more real protections for retaliatory evictions, and better access to counsel for low-income tenants.  While Cooper offers a number of legal solutions, she acknowledges that her solutions are only a small part of the puzzle.  As Cooper says:

The legal solutions outlined in Parts II and III of this Essay can only be part of the picture. As Desmond’s sociological study makes clear, any solution to the housing crisis that those living in poverty face requires an interdisciplinary approach. Laws to protect tenants threatened with eviction and tenants seeking safe, affordable housing—and lawyers to ensure that tenants can realize those legal protections—are a critical part of the solution. But they are only part of the solution. Other important areas for further inquiry include the way “affordable” housing is defined for people with extremely low incomes, the dearth of subsidized and/or genuinely affordable housing for individuals in poverty, the way rent is calculated in the voucher program, and the effects of that formula on both voucher tenants’ mobility and on market rents for other tenants in high poverty neighborhoods.

Finally, Rosser focuses on the aspect of low-income tenants that no one likes to talk about: exploitation.  A central claim of Desmond's book is that poor renters are exploited and Rosser applauds Desmond for bringing that issue to the forefront as opposed to dancing around it as many are want to do.  Rosser categorizes the types of exploitation that low-income tenants face into deliberate exploitation and market-driven exploitation.  The former, while morally reprehensible, is in many respects less concerning than the latter.  As Rosser writes, "The market, combined with a legal structure that largely supports the interests of landlords in collecting rent over the interests of tenants in adequate conditions, exploits the inability of the poor to make meaningful demands on landlords."

Just like Desmond's book is a powerful piece, so too are the essays in the Yale Law Journal Forum.  If you have not had a chance to read the book or the essays and have any interest in housing, landlord/tenant issues, or just human dignity, they are well worth the read.  

Fellowship Opportunity with the Princeton-Mellon Initiative in Architecture, Urbanism, and the Humanities

This just in from Sarah Schindler (Maine):

Princeton-Mellon Initiative in Architecture, Urbanism, and the Humanities
Call for Fellows, 2017-18

The Princeton-Mellon Initiative in Architecture, Urbanism, and the Humanities is pleased to announce a call for fellows for the 2017-18 academic year. Two fellows will be appointed; one fellow will focus on Architecture and Humanities and the other on Urban Adaptation to Climate Change.

For questions, please email [email protected].

Architecture and Humanities Fellow

The Princeton-Mellon Initiative in Architecture, Urbanism and the Humanities and the Council of the Humanities at Princeton University seek to attract a fellow whose work is grounded in the humanities to collaborate with both programs. Applicants with outstanding intellectual, literary, and visual talents who demonstrate an abiding interest in multi-disciplinary work focused on the intersection of architecture, urbanism, and the humanities are strongly encouraged to apply. The fellow may be expected to team-teach a new interdisciplinary design studio for undergraduates that will be required for Urban Studies certificate students, or a seminar on urbanism and the environment, with a member of the design faculty in the School of Architecture at Princeton (contingent upon sufficient enrollments and approval from the Dean of the Faculty).

Please submit a cover letter (including your teaching interests), CV, 1,000 word description of a proposed research project, and a brief (chapter or article-length) writing sample, and contact information for three references by May 12, 2017 for full consideration.

For applicants taking a sabbatical year., please apply here.

For applicants seeking a postdoctoral position, please apply here.

Urban Adaption to Climate Change

The Princeton-Mellon Initiative in Architecture, Urbanism, and the Humanities, together with the Climate Futures Initiative at Princeton University, are seeking fellowship applications in urban adaptation to climate change for the 2017-18 academic year. 

We seek to attract a Fellow engaged in bridging the environmental sciences, social sciences, planning and architecture and/or the humanities. Fields of specialization might include planning and architecture, cultural studies, geography, history, philosophy, politics, or public policy. We welcome research projects contemplating any given dimension of the relationships between built and natural environments. These could include scholarship on the impact of different urbanization models (e.g.: density vs. sprawl); ethical questions (who wins and who loses in various adaptation scenarios); models of deliberative governance; the arts in the 'anthropocene'; or design solutions to cope with the consequences of climate change. The individual will be required to team-teach an undergraduate course on urban adaptation to changing environmental conditions (contingent upon sufficient enrollments and approval from the Dean of the Faculty), and expected to participate regularly in the events and activities of both the Princeton-Mellon Initiative and the Climate Futures Initiative.

This position is funded through the support of the Princeton Environmental Institute's Urban Grand Challenge, which fosters productive exchanges between students and scholars working in a variety of fields to create an innovative program that combines the study of the natural and built urban environments with a goal of identifying solutions that are sensitive to environmental issues including global change, water resource management, energy efficiency, technology innovation, human and environmental health, as well as equity and fairness, poverty and jobs creation, race, ethnicity, and more intangible notions of belonging.

Please submit a cover letter, vita, 500-word description of a proposed course, brief (chapter or article-length) writing sample, 1,000 word description of a research project that he/she would undertake as a fellow, and contact information for three references by May 12, 2017.

For applicants taking a sabbatical year., please apply here.

For applicants seeking a postdoctoral position, please apply here.

Tis the Season for Eggs

Dying Easter eggs with your kids always starts out as a wholesome, family fun event, yet somehow seems to always end with children in time out and parents scrubbing pastel-colored dye off of white surfaces because we never seem to learn that egg dying should not take place on white tables.  Or maybe that’s just my family’s annual experience.

Perhaps your Easter egg experience is rolling them down the front law of the White House.  Some 35,000 folks did that last year, though it appears the event may be a bit smaller this year.    

Or, during the start of spring, perhaps you are thinking about an entirely different type of eggs, namely human eggs.  Frozen human eggs, to be specific.  Property law's relation to frozen human eggs is the topic of Browne Lewis’ (Cleveland-Marshall) article “You Belong to Me”:  Unscrambling the Legal Ramifications of Recognizing a Property Right in Frozen Human Eggs, 83 Tenn. L. Rev. 645 (2016).  Lewis’ article was just reviewed by Tanya Marsh (Wake Forest) on JOTWELL.  Both the article and the review are worthy reads during this egg-cellent spring season. 

Lewis’ article notes the importance of determining whether and how property law applies to frozen human eggs.  While Marsh (and most courts) are a bit taken aback at the idea of “owning” any part of the human body, be it eggs or cells, what Lewis provides is a framework for contemplating the property and bioethics issues involving frozen human eggs. 

So here's to scholarship on eggs of all types! 

D'Onfo on Property Rights and Secured Credit

Danielle D'Onfro (Washington University) has posted Limited Liability Property (Cardozo Law Review) on SSRN. Here's the abstract:

This Article offers a new theory of secured debt that aims to answer fundamental questions that have long puzzled bankruptcy scholars. Are security interests property rights, contract rights, or something else? Why do secured debt holders enjoy a priority right that, in bankruptcy, requires them to be paid in full before other debt holders recover anything? Should we care that secured credit creates distributional unfairness when companies cannot pay their debts? Because scholars have yet to provide a satisfactory account of security interests, these questions remain unanswered.

The Article argues that security interests are best understood as a form of “limited liability property.” Limited liability — the privilege of being legally shielded from liability that would normally apply — has long been considered the quintessential feature of equity interests. But limited liability is in fact a critical feature of security interests as well. When examined closely, security interests enable their holders to assert several privileges of ownership without bearing any of ownership’s concomitant burdens.

In seeking to explain security interests, the Article offers a comprehensive account of capital investment more generally, systematically examining the various interests held in corporate capital structures. Though critics have bemoaned the inequity associated with the priority right in bankruptcy — a secured debtholder can get all its assets back in the event of a bankruptcy while unsecured creditors like unpaid employees get nothing — this priority right is an inevitable consequence of recognizing security interests as a form of direct ownership. The real problem lies in the scope of secured debt holders’ limited liability protections. While equity holders enjoy limited liability, in return they are paid only after other claims in the event of insolvency. Secured lenders make no such tradeoff, and are thus arguably over-protected. Understanding security interests as limited liability property, then, offers a more elegant way to understand capital investment at the theoretical level while also helping us recognize when and where our system of secured debt needs reform.

Stern on Government Interference with Private Property

Shai Stern (Bar-Ilan) has posted Property's Tipping Point (Cardozo Law Review) on SSRN. Here's the abstract:

There is a clear tension in the law between exercises of state police power in land-use regulation, including zoning laws, on the one hand, and takings under the Fifth Amendment on the other. Courts have struggled to find a dividing line between the two, but for their efforts we are left only with is a disjointed array of legal tests, each one as flawed as the next. Legal theorists, for their part, must shoulder some of the blame—no single theory can identify the point at which community need outweighs private property rights. Even well-developed theories thus fail to translate into practical application. But this Article is resolved to bridge that gap.

This Article presents a novel theory that provides a unified normative framework for evaluating government interference with private property. It seeks to identify the tipping point at which private property rights must give way to the needs of the community at large. This approach, which I refer to as Property’s Tipping Point, is a burden-shifting framework that accommodates competing theories of property. It builds on landmark Supreme Court cases to provide a unified standard for courts to apply in resolving cases of regulatory takings and exactions.

The approach presented in this Article has both a substantive and a procedural component. It develops two tests that work dynamically to identify the point where community need trumps owner autonomy: the indispensability of needs and the generality of action. The former requires that any government interference with private property is designed to promote community prosperity. The latter test—the generality of action—confines the government to the boundaries of the rule of law. It is only by passing these two tests that a government authority may reach Property’s Tipping Point.