PropertyProf Blog

Arnold on Coastal Industrial Disasters, Insurance, and Climate Change

Zach Arnold (DC lawyer) has posted Preventing Industrial Disasters in a Time of Climate Change: A Call for Financial Assurance Mandates (Harvard Environmental Law Review) on SSRN. Here's the abstract:

In the current era of accelerating climate change, rising sea levels, and increasingly extreme weather, coastal industrial disasters pose a large and growing risk to society. The private sector and public officials are both failing to adequately respond to this risk, and the familiar regulatory tools in this context, such as design mandates and adaptation subsidies, have significant drawbacks. This paper proposes a novel policy framework to prevent coastal industrial disasters. I argue that financial assurance requirements (FAMs), such as insurance mandates, can induce coastal industry to adapt to the coastal impacts of climate change and can ensure that the public will be fully compensated for any disasters that nonetheless occur. FAMs can mobilize the considerable expertise of third-party financial assurance providers and provide efficient incentives for private adaptation. Moreover, they are relatively simple to implement, making them especially suitable for state, regional, and municipal policymakers facing locally concentrated climate impacts, tight resources, and federal gridlock. FAMs are a promising remedy for a significant and increasingly urgent danger.

Singer and Mulvaney on Homelessness, Eviction, and Democratic Values (A Tribute to Andre van der Walt)

Friends of the blog will no doubt remember the untimely passing of Andre van der Walt, the South African Research Chair in Property Law and a Distinguished Professor of Law at Stellenbosch University in South Africa. Andre was a champion of progressive theories of property, and he made major contributions to South African constitutional property rights law and educated many generations of lawyers and property scholars. In his honor, Joe Singer (Harvard) and Tim Mulvaney (Texas A&M) recently posted an article titled Move Along to Where? Property in Service of Democracy on SSRN. The piece is a tribute to Andre, and the abstract is as follows:

When the police in cities that prohibit sleeping in public spaces command that people on the streets “move along,” advocacy groups for the homeless have started a campaign that pointedly asks “move along to where?” This question seeks to highlight the reality that homeless persons are being subjected to an order with which they have no capacity to comply. In this instance, the state is defining and rigidly enforcing property rights without concern for the consequences of its doing so; it apparently is only after this exercise in definition and enforcement that the state can move to respect fundamental democratic values—such as dignity and equality—in the space that remains.

Inspired by the work of André van der Walt, we here present the alternate thesis that property exists in service of the values that characterize our democracy. We advance this thesis through the lens of two stories of eviction—the leading cause of homelessness in the U.S.—in which our democratic values seemingly and, in our view, unacceptably are taking a backseat to property.

This is an excellent and very timely article (which I've had the pleasure of listening to the authors present recently). A truly fitting tribute to Andre. To view Andre's many excellent books, articles, chapters, and other contributions, click here. Excellent work to both Joe and Tim.

More CFPs: Property Implications of the Sharing Economy

As promised, we have more call for papers on property-related workshops coming up!  

The AALS Property Section and AALS Commercial and Related Consumer Law Section are co-sponsoring a workshop at Penn State Law (University Park) on October 6-7, 2017 titled "Property Implications of the Sharing Economy." The workshop is being co-organized by Dean Hari Osofsky, Penn State Law and School of International Affairs; Rashmi Dyal-Chand, Northeastern University School of Law; and Shelly Kreiczer-Levy, College of Law and Business, Ramat Gan, Israel. 

The last several years have seen a major growth in peer-to-peer online exchanges and other collaborative consumption enterprises. Companies such as Airbnb and Uber have disrupted long-established regulated industries. A wide range of smaller companies connect strangers to “share” underutilized resources. In addition, crowdfunding through Kickstarter and other companies has provided a mechanism for individuals to launch ventures that are difficult to fund through traditional methods. These types of companies are only likely to become more important. PricewaterhouseCoopers, for instance, estimates that sharing economy global platform revenues could grow from $15 billion in 2013 to $335 billion by 2025.

The rapid growth of the sharing economy has significant property implications. It changes how people use their own property and interact with the property of others. Property law—among many other types of applicable law, including tax, insurance, zoning, licensing, consumer protection, data privacy, and labor law—both facilitates and constrains these exchanges.

Submissions of abstracts are welcome in any area that connects to the workshop themes. The organizers would also would be delighted to have individuals serve as commentators or moderators of sessions. Please let the organizers know of your interest in participating by July 1, 2017 by emailing Shelly Kreiczer-Levy. Please include an abstract if you would like to present. Presenters, commentators, and moderators will be accepted on a rolling basis and the organizers anticipate finalizing participants by July 15, 2017.

Penn State Law, based in University Park, PA, will host the event and provide meals throughout the workshop. Participants will be responsible for other expenses, including their own travel and lodging, though a hotel block has been arranged for participants at a discounted rate.

AALS CFPs are rolling in!

There are lots of call for papers in the works for AALS sections for presentations at the upcoming AALS Annual Meeting in San Diego from January 3-6, 2018.  Two such CFPs are below and I know there are more forthcoming in the next few days.  If you have a call for papers for a property conference or workshop, let us here at #PropertyLawProfBlog know and we will help you spread the word!  

AALS Section on Property Law Presents "Structural Facilitation of Property Markets"
January 4, 2018 from 10:30am to 12:15pm 

A variety of legal doctrines, systems, and institutions have emerged over time to facilitate the effective operation of markets in property by adding value to property assets, adding certainty to and streamlining the process of property transactions, adding accessibility to property, or otherwise proving greater security for property rights. At other times, informal norms may emerge to accomplish similar aims. These structural facilitators are, indeed, sometimes features of the property system itself (component parts of its governance) and at other times operate outside but ancillary to the system. Some of these arise spontaneously by market demands while other elements of the property law infrastructure may or may not be possible only by means of government intervention in the markets. Some facilitators are deliberately designed to benefit the property system, while others simply have that effect. Some are arguably designed to enlarge “freedom” while others could be described as restricting “freedom” in order to save it, i.e. intentionally placing limits on autonomy to enhance the value of the property rights that remain. Examples of such facilitators that may be discussed by the panelists include: information systems like recording regimes or registries; traceability mechanisms like blockchain technology; content limits like the numerus clausus principle; fairness, equality, and anti-discrimination principles geared toward enlarging property ownership markets; prohibitions on certain restraints on alienation; or at other time restraints on alienation like with fraudulent conveyancing doctrines. Land use and public law systems themselves create a legal infrastructure designed to facilitate property ownership or to manage property conflicts. Other examples of facilitating industries or polices could include: big data; financial markets; banks and real estate financing; brokers; title and other insurance; and tax preferences, among others. This panel will examine the necessity of these facilitators and the property system’s dependence on them, along with the ways they should or should not be regulated to guide or control their effect on property markets. The panel will also consider how these facilitators influence or are influenced by various theories of property systems, property rights, and the operation of property markets. Approaches considering interdisciplinary perspectives are encouraged.

Submissions are invited for presentation at the program. There is no formal requirement as to the form or length of papers. Although abstracts will be accepted, preference will be given to papers that are substantially complete and that offer novel scholarly insights. Submissions must be received no later than September 1, 2017. Individuals interested in presenting are encouraged to send letters of interest and an abstract as soon as possible (with expectation of a paper to follow), even if you will not submit a final paper for consideration until closer to the deadline.  Please email your submission, in Word or PDF format, to the Property Section chair, Donald Kochan with “Submission: AALS Property CFP” in the subject line. All submissions will be reviewed and selected by the Property Section’s Executive Committee. The individuals selected to present papers will be notified no later than Thursday, September 28, 2017.

AALS Section on Property Law Presents "New Voices in Property Law:  Junior Scholars Works-in-Progress Panel"
January 6, 2018 from 3:30pm to 5:15pm 

The purpose of this works-in-progress program is to bring together junior (pre-tenure) and senior property law scholars to give the junior scholars an opportunity to present and get useful feedback on papers that will not yet have been submitted for publication as of January 2017. In addition to having the opportunity to share work through the panel, at least one senior scholar will be designated as a reviewer who will have read the paper ahead of time and will be prepared to discuss the paper and offer constructive comments at the session and/or in writing.

An eligible junior scholar is anyone who is an untenured, full-time faculty member of an AALS member law school.  To be considered for participation in the program, please send an email to Donald Kochan, no later than September 8, 2017. In your email, please use the subject line “AALS Property Junior WIP Submission” and attach at least an abstract or draft-in-progress (including a working title of the paper). Also, please include in your email (a) your school, (b) your tenure status, (c) your years in the position and any prior legal academic positions, and (d) whether you have participated in the New Voices program last year (or Property Law Breakfast Mentoring program in previous years); preference will be given to those who have not previously participated. The Section’s Executive Committee will consider and select papers from the pool of submissions.

If selected for participation in the program, by accepting a presenter agrees to submit a draft to Donald Kochan no later than December 1, 2017, so that the draft can be sent to the designated reviewers to read before the conference. The draft submitted at that time should be substantial, but it does not need to be fully polished or ready for law review submission. Reviewers welcome early stage papers when the author can most benefit from discussing the paper.

For senior scholars, if you are interested in serving as a commentator on a paper submitted by a junior scholar, please email Donald Kochan as soon as possible.

Ahmad on Environmental Justice and Land Use

Nadia Ahmad (Barry University) has two new pieces that both touch on environmental justice and land use, albeit in slightly different ways.  In her article Trust or Bust: Complications with Tribal Trust Obligations and Environmental Sovereignty, 41 Vermont L. Rev. 799 (2017), Ahmad looks at environmental  justice and land use from a Native American perspective.  Ahmad examines infrastructure projects on tribal lands and argues that current federal right-of-way law chisels away at tribal land rights.  In The Baseline Bar, 65 Kansas L. Rev. 579 (2017), Ahmad explores the National Environmental Policy Act's "no action" alternative provision used to assess whether a project moves forward.  Ahmad asserts that the "no action" alternative is used more as a tool of assessment to move a project forward than as a tool of prohibition to halt a project and its deleterious environmental impacts.  To strengthen the “no action” alternative, this article recommends a more detailed analysis to conserve delicate environmental spaces and alleviate the phenomenon of environmental racism.  While both these articles explore land use through different lenses, both articles address the issue of infrastructure projects and property rights issues related to natural resources, indigenous land rights, extraction activities on federal lands, and environmental justice concerns for land use.